LegHis Reviewer 2nd Half

VI. Americanization of the Common Law AGABIN: CHAPTER 6 American Culture, Constitutionalism, and the Common Law America as a Business Civilization way of life of a people, and a civilization is a culture write large • Civilization and culture both refer to the overall way • They both involve values which successive generations in a given society have attached primary i mportance • Scholars have portrayed the US as a business civilization • This means that its values, ideals, and higher intellectual qualities, including juristic thought, revolve around the elements of a business system system

• The US civilization is characterized by: • Private property • Contract and freedom of contract • Industrialism • Business • Profit motive • Individualism rather than political referents • In the thesis of sociologists, American law is most inspired by economic rather • The Common law responds to economic referents have advanced the legal principles expressing the values of a society increasingly committed to market • Judges have capitalism and economic growth state, is the • The basic pillar of capitalism, protectino of established property rights against interference from the state, basic doctrine of American constitutional law

• The primary goals of American policy towards the Philippines was cultural imperialism, and economic exploitation that underpins American constitutionalism is liberty of the individual, which implies freedom • The overreaching value that of enterprise in the American culture concept of constitutionalism in the US has been molded by the ethos of • The development of the common law and the concept the business civilization and mutation mutation of due process

• The US sought to recreate the Philippines in its own image power, was rendered impotent by the very size of the new business • The traditional power of the states, police power, leviathans which had emerged as domestic monopolies

• Emerging as the victor in the judicial arena, the large corporations beg an to exercise political power How the Business Civilization Wrote Laissez Faire into the American Constitution Roosevelt blamed it on the Spaniards. • USS ship exploded. Roosevelt • McKinley declared war on Spain not only to assist Cuban rebels to win independence, but also to occupy the Philippine

American Origins: The Birth of Judicial Constitutionalism

• The hegemony spelled the dominance of the economic doctrine, laissez faire, which shaped political thought Legal History A.Y. 2017-2018 | Ma’am Dy

| Malferrari, Nikki |

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• The delivery of twin principles of due process and liberty of contract was induced by the shock of the US SC ruling in Munn v Illinois

• It was the strategic position of the lawyers and the judges to put the theory of laissez faire into legal jargon which accounted for their success in recasting judicial thought judiciary, awakened to the assaults against property rights, asserted its leadership over political thought, and • The judiciary, indulges in judicial legislation that the citizen’s liberty in the constitution refers • The court evolved the doctrine of “liberty of contract” by declaring that not only to his freedom from personal restraint, but also the right to pursue any livelihood, and for the purpose to enter into all contracts which may be needed i n carrying out that livelihood

• This constitutes laissez faire in legal mantle POUND: CHAPTER 1 The Feudal Element of justice is immediately in the hands of common-law judges, their habit of applying to the • Wherever administration of cause in hand the judicial experience of the past, rather than fitting it into its logical pigeonhole in an abstract system, undermines the competing body of law and makes for invasion of common law

• Met with defeat at one point with its rivals: Won decisively by German law • Not a competition of English with Germans, but competition of legal rules. law of the world • Anglo-American system is a law receive the most diverse bodies of doctrine and most divergent bodies of rules: • It is able to receive • Equity: law to misdemeanors • Admirality: probate and divorce • Common law has triumphed, contended with more than one powerful antagonist and has come forth victor strove for jurisdiction with the church • In the 12th century: strove • 16th century: stood firm against Roman law kings • Established its doctrine of supremacy of law against Stuart kings • Maintained doctrine of precedent by citing English decisions in spite of histility to lawyers legislation is bitterly attacked in the land of its origin • Its doctrine of supremacy and judicial power over unconstitutional legislation socialization, shifting from abstract individualist justice to newer ideal of justice is putting strain on all law • Movement for socialization, everywhere

• Rise of executive justice • Tendency to commit to boards and commissions which proceed extrajudicially • Breakdown of polity of individual initiative in the enforcement of law and substitution of administrative inspection and supervision Failure of popular feeling feeling of justice justice • Failure tasks (development of common law in an • Institution of elective judiciary does not give courts that are adequate for such tasks era of growth) growth) that it was • Change in mode of choice and tenure of judges changed how the bench was percieved before which was that independent and strong

Legal History A.Y. 2017-2018 | Ma’am Dy


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• The delivery of twin principles of due process and liberty of contract was induced by the shock of the US SC ruling in Munn v Illinois

• It was the strategic position of the lawyers and the judges to put the theory of laissez faire into legal jargon which accounted for their success in recasting judicial thought judiciary, awakened to the assaults against property rights, asserted its leadership over political thought, and • The judiciary, indulges in judicial legislation that the citizen’s liberty in the constitution refers • The court evolved the doctrine of “liberty of contract” by declaring that not only to his freedom from personal restraint, but also the right to pursue any livelihood, and for the purpose to enter into all contracts which may be needed i n carrying out that livelihood

• This constitutes laissez faire in legal mantle POUND: CHAPTER 1 The Feudal Element of justice is immediately in the hands of common-law judges, their habit of applying to the • Wherever administration of cause in hand the judicial experience of the past, rather than fitting it into its logical pigeonhole in an abstract system, undermines the competing body of law and makes for invasion of common law

• Met with defeat at one point with its rivals: Won decisively by German law • Not a competition of English with Germans, but competition of legal rules. law of the world • Anglo-American system is a law receive the most diverse bodies of doctrine and most divergent bodies of rules: • It is able to receive • Equity: law to misdemeanors • Admirality: probate and divorce • Common law has triumphed, contended with more than one powerful antagonist and has come forth victor strove for jurisdiction with the church • In the 12th century: strove • 16th century: stood firm against Roman law kings • Established its doctrine of supremacy of law against Stuart kings • Maintained doctrine of precedent by citing English decisions in spite of histility to lawyers legislation is bitterly attacked in the land of its origin • Its doctrine of supremacy and judicial power over unconstitutional legislation socialization, shifting from abstract individualist justice to newer ideal of justice is putting strain on all law • Movement for socialization, everywhere

• Rise of executive justice • Tendency to commit to boards and commissions which proceed extrajudicially • Breakdown of polity of individual initiative in the enforcement of law and substitution of administrative inspection and supervision Failure of popular feeling feeling of justice justice • Failure tasks (development of common law in an • Institution of elective judiciary does not give courts that are adequate for such tasks era of growth) growth) that it was • Change in mode of choice and tenure of judges changed how the bench was percieved before which was that independent and strong



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prevent judicial lawmaking from • Condition of pressure and deliberation where crowded calendars preclude thoroughness prevent achieving its best

• Even in writing decisions, a judge has to do 5x what he had to do a century ago • Where courts heard counsel until every detail a century ago, today the court is compelled to restrict argument to an allowance of an hour to counsel on each each side

• Two powerful forces have counter-acted the economic pressure and class interest, and have prevented the law from being what economic classes conflict might have had from analogies of existing rules and doctrines • First: insistence on development of law logically from • Second: conscious endeavor to make law express supposed eter nal and unchangeable ideals

• Demand for certainty lead jurists and judges to resort to aalogy whenever they are confronted with a new problem system • The condition of law depends upon the condition of the traditional element in the legal system • Two characteristics of our legal system: property. It is concerned • Extreme individualism: unlimited valuation of individual liberty and respect for individual property. with individual rights. Preserves litigation as a fair ri ght. It relies on individ ual initiative to enforce the law and vindicate the right doctrines • The isolated individual is the center of many of its most significant doctrines

• Tendency to affix duties and liabilities independ ently of the will of those bound, to look to relations rather than to legal transactions

• Seven important factors that contributed to shape American common law: • Original Substratum of Germanic legal institutions and jural ideas • Feudal law • Puritanism • Contests between courts and crown • 18th century political ideas communities • Conditions of pioneer of agricultural communities • Philosophical ideas with respect to justice, law and the state • Feudal law has given to our legal system a fundamental mode of thought law, material out of which American judges in the19th century made law under • Germanic law was the basis of American law, which we live

• Stage of “strict law” • Individualism is a prime characteristic of stage of legal development known as strict law • Makes no allowance for accident and has no mercy for defaulters • Strict law had little use for one who was tricked or coerced into a legal transaction which were only keeping the peace, to do so for him • If he could not guard his own inerests, he must not ask the courts, which • It held that every man of mature age must take care of himself, he must not expect to be saved from himself by legal paternalism or maternalism folly, and he must abide by it • Situation was produced by the party’s own folly, • Thus, Anglo-American law was individualist in the beginning

• Feudal relation of lord and man: • Not what man had undertaken, but what he was. • Lord had rights against tenant and tenant against lord. Legal History A.Y. 2017-2018 | Ma’am Dy


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• • • •

Tenant owed duties of service Lord owed duties of defense and warranty And these things existed simply because of their status The rights and duties belonged to that relation, it existed as a legal consequence

• Compared to Romanist system, the chief role played by legal transaction is an act intended to create legal results to which the law carrying out the will of hte actor gives intended effect

• Secure and effectuate the will • In our law, in contrast, the central ide a is rather relation. The Common law lawyer thinks about the relation of principal and agent and of powers, rights, duties and liabilities incidental to their relations.

• Relation of master and servant • The action and use for land may be maintained only where a relation exists NOTES FROM CLASS:

• • • • •

Common law withstood so many challenges Used analogy to determine judgements 2 characteristics: extreme individualism and tendency to impose liabilities Feudal law tempers it because of feudal reationships there are obligations that need to be done Fedual element tempers individualism

• Mere fact of existence of that relationship serves to temper the meaning of fators that brought about that relationship • What are the legal consequences that arise between p arties? • Germanic institutions: what did they contribute to the legal instutions? • Represents stage of legal development, speaker from stage of equity or natural law • Strict law • When normans took over England, they didn’t impose any laws, thus, England common law was born because they let the people decide

• Doctrine of Strict Law = “invidualism”, full and exact performance of all things according to law • Every man of mature age must take care of himself • Produced by his own folly: Primacy of will of the individual. Let them do whatever they want.

POUND: CHAPTER 2 Puritanism and the Law • Phases of idealistic interpretation: • Religious interpretation: seeks the key to juristic progress and juridical institutions in the progress of religious thought, has been used in connection with Roman law

• Assumes that movement from subjection to freedom, from status of contract, is the key to legal/social development • Idea of justice has had nothing to do with the actual course of legal development, and sole agency in determining the growth and content of legal systems has been the self interest of class dominant in a particular society Legal History A.Y. 2017-2018 | Ma’am Dy


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• No social institution is the product of any one cause, is rather the resultant of many causes • It is due to an innate tendency to individualism among Germanic people • Some regard it as a product of puritanism • What is peculiar to Anglo-American legal thinking and American legal thinking is an ultra-individualism, an uncompromising insistence upon individual interests and individual property as the focal point of j urisprudence

• Puritanism gave added emphasis to individualist ideas in the formative period • Individualism • Had origin in end of 16th century. • Two factors for rise: • Emancipation of middle class: maturity and decay of theory of natural law • Protestantism: assumed that the state was a chief good and that no individual claims could stand against it. Basis for this doctrine was nationalist rather than individualist.

• Theory as to canon law was that all jurisdiction was divided between spi ritual and temporal • In spiritual, the temporal authority was incompetent, and church had absolute legislative power within his field • Real influence of religious thinking was to come later: history of the common law begins in the latter part of the 13th century.

• Common law a mode of thought • Two growing periods of common-law system • Classical common-law period • Common law will be regarded as no less classical than the first • Doctrine of willing covenant of conscious faith: put individual conscience and individual judgement in the first place • No authority might rightfully coerce them, but everyone must assume and abide by consequences of the choices he made

• Regime of consociation but not subordination • It was necessary consequence that the state was a matter of contract also • Puritan Revolution • Given us the conception of abstract liberty of contract, the notion of punishing the vicious will and necessary connection between wrongdoing and tribution

• Individual freedom of interpretation, individual rights were the basis of his religious, political and legal views • Puritan was firm believer in enactment, he believed in instruction and liberal instruction through the statute book to which instruction shall be followed largely to conscience and judgement of the individual, unhappy feature of our policy

• In the law of torts, few doctrines have been more irritating than those of assumption of risk and contributory negligence, as applied to injuries of employees

• These are puritan conceptions: the employee is a free man, guided by his own conscience and his own interpretation of Scripture. He chooses for himself. In electing to work in dangerous employment, he knows he runs a risk of being injured.

• He is a free man, let him bear the loss • Legislation has been changing these rules, yet courts long had a tendency to read the doctrine of contributory negligence into statutes even where legislature tried to get rid of it

• In criminal law, because of individualization of punishment, Legal History A.Y. 2017-2018 | Ma’am Dy


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• Puritans objected to individualization in punitive justice, individualism in abstract rules of law precluded individualization or adjustment to individual cases in application of rules

• Looks upon criminal in the abstract: he is a free man who voluntarily chose to do wrong and must abide by the penal consequences

• In law of property: we see examples in doctrine as to abusive exercise of rights • Use of property or exercise of power incident to property for sole purpose of injuring another • The common law asked simply, was the defendant acting on his own land and committing no nuisance? If so, it cared nothing about his motive.

• The public good is interested in the protection of every individual’s private rights • Superiority in the magistrate in that it allows him to judge another by a personal standard instead of by an unyielding, impersonal legal rule

• Puritan’s jealousy of the magistrate has developed jealousy of the judge • Puritan ideal state was a deadlock where the individual had free play for dictates of his own reason and consciencean bed of p

• Our legislation exhibits an inconsistency that is part of the Puritan character • Administration paralyzed law • Legal system must temper its individu alism, the law should only temper, not abandon the element in our tradition which was contributed by the Puritan.

• Justice is made up of individual cases • Legal formulas are necessary to preserve the dignity of the tribunal, to expedite its business, to keep person of magistrate in due bounds, and to give the judge the benefit of the experience of the past.

NOTES FROM CLASS:

• Puricansim - cultural individualism • Emancipation of 2nd class • Protestantism • Passive obedience - no individual could stand against the state • What was the covenant that they operated und er? • Doctrine of Winning Covenant of an Individual - primacy in individual because you must assume that individual knows the consequences of his decision

• “Willing” - voluntary/promise, willing or conscious • Religion is not forced on them, entered into it knowing the consequences • What is the effect of this doctrine? • Enter into contract with state willingly • Law of torts: • Assumption of contributory negligence • Example: freely choose to work in dangerous environment • Are puricans in favor of courts? • Against it because knowingly entered into jobs knowing dangers and assumed risk • Why are puricans against contributory negligence?



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• While he will be injured, he still contribute to negligence, puricants don’t like this because the one who injure the person should bear the consequences

• Law of property • Doctrine of absolute exercise, disregarded motive • Put premium on the free will of the individual • Disregard motive of individual because that is what he wants to do, should let him be • Criminal law • Focuses more on taking acount of criminal, not the crime itself • Puricants resisted, wanted judges not to exercise discretion • Judges should have no discretion on how to apply the law or not. Why should judges have power over the individual?

• Puricants objected to individualization • Law paralyzed admin • Purican jealousy of magistrate • Don’t want legislature to limit, don’t want judges to have discretion

POUND: CHAPTER 3 The Courts and the Crown • Archbishop: Judges were but delegates of the king, wherefore the king might do himself what he left usually to these delegates

• If not in law yet beyond question in divinity, Coke answered on behalf of the judges, that by the law of England the king in person could not adjudge any cause, all cases were to be determined in some court of justice according to law and custom of realm

• Coke said that king ought not to be under any man but under God and the law • In 17th century, it was progressive to insist up on the royal prerogative • Will of the king was the criterion of law and it was the duty of hte courts, since the judgs were but the king’s delegates to administer justice

• 18th century, center of political gravity had shifted to the legislature • Courts had but to ascertain and give effe ct to its will • End of 19th century: center of political gravity had shifted to majority or more often the plurality of electorate • Judges were but delegates of the people to do justice • Will of the organ of the state, even for the time being, must be both the ultimate guide and the immediate source to which judges should refer

• Common-law courts have consistently refused to give effect to their acts beyond those limits • This attitude, called Doctrine of Sup remacy of law - has basis in fedual idea of the relation of king and subject and reciprocal rights and duties involved therein

• Goes back to fundamental notion of Ger manic law



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• Philosophically, it is a doctrine that sovereign and all agencies are bound to act upon p rinciples, not according to arbitrary will, obliged to reason instead of being free to follow caprice

• Doctrine of Supremacy of law • Became established as a result of the contests between the Crown and the Courts • Examples: sheriff could not justify refusal to execute a writ of king’s court by showing a mere private letter from the king

• King can pardon offenders but he might not instruct a sheriff to disobey the precepts of the law • When he acted as king, his acts were those of the law, when he acted by private letter, he could not interfere with the due course of the law which bound the whole realm

• Formal law: required king and his agents to act in due form, if their acts were to have any legal validity • In common law, king is parens patriae, father of his country, which is but the medieval mode of guardian of social interest

• King was charged with duty of protecting social interests • But limited on every side by maxims of common law and bounds set by law of the land • In these contests between courts and crown, the courts had been guarding social interests by preventing perversion to quite different uses of power which could be used right fully only to further public or social interests

• It seemed that judicial justice, administered in courts, was to be superseded by executive justice administered in administrative tribunals or by administrative officers

• Common-law waged fight against administrative absolutism, and in the end, the older law p revailed • The law was liberalized but it was still the common-law • Doctrine of supremacy of the law - became established among fundamental legal tradition • Its scope broadened so as to make of it a doctrine of limitations upon all sovereign powers • It spirit became individualist • It became a doctrine that common-law courts stand between the individual and oppressive action by the state • Existed for individuals to protect them against state and society • Imperium and dominium: power of magistrate and power of the owner were confused during middle ages • Under germanic idea, dominium was more like imperium. But breakdown of feudalism gave significance to these texts as a more scientific study of Roman law

• Bill of rights sought to impose legal limits upon the action of thoes who wielded the powers of sovereignty, while adhering to political theory of illimitable and uncontrollable power in sovereign itself

• Conflict of stubborn theory and juristic theory • Each theory was the outgrowth of law and politics of the 17th and 18th centuries • In insisting supremacy of law, the common law is not bound of necessity to stand always against popular will, rather, its true position is one of standing for ultimate and more important social interests as against more immediately pressing but less weighty interests of the moment

• Period of juridical idealism was at hand, law of continental Europe was liberalized by juristic doctrine that all legal institutions were measured by reason

• Supremacy of law established by common law may not disappear, law is an expression of reason applied to the relations of man to man and man to state

NOTES FROM CLASS:



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• • • • •

King had authority according to doctrine King -> Legislature -> Judge Roman law developed Doctrine of Judicial Precedent Doctrine of Supremacy of Law - there is fundamental law (Bill of Rights) that protects the individual

• • • •

Emphasized in conquest Court gave several cases Lack of form fostered individualism Have to follow form prescribed by laws

• What did king do that’s not in accordance with the form prescribed? • Person received private letter from King, but Court said he should not have acted on the personal letter. • Law is superior than the acts of the king • In contests between courts and crown, courts guard the social interest of the people • Individualism wasn’t implemented • 3rd phase: reformation, supremacy of temporal power or worldly power, gave individual the chance to set the tone for themselves, outside the legal jurisdiction.

• Common law absorbed the supremacy of the law in terms of preventing the state from encroaching on people’s rights.

VII. Importation of the Common Law AGABIN: CHAPTER 7 Conquest and Penetration: Birth of Mestizo Historical Background

• USS ship exploded. Roosevelt blamed it on the Spaniards. • McKinley declared war on Spain not only to assist Cuban rebels to win independence, but also to occupy the Philippines and, in the process, crush the newly-born Philippine-Republic

• Queen of Spain realized that her country would be beaten, and sought conciliation to avoid it • Labored under the delusion that it was America’s “Manifest Destiny” to expand westward to make the Pacific an American lake

• Treaty of Paris provided a veneer to legitimize the American occupation of the Philippines • One of Elihu Root’s first official acts as department head of Secretary of War was to emphasize that America would civilize the natives according to the constitutional standards of the US Constitution.

• Not all the rights listed in the American Constitution followed the flag into the Philippines • Taft looked at ilustrados as the key to his policy of attraction • Ilustrados formed the Partido Federalista to lay foundations of eventual statehood in the American union • The Spooner Amendment created the principal organ of the administration, the Philippine Commission • It is to be expected that the American administration had to rely on the Federal Supreme Court to protect their interests in the newly-acquired colony

• The SC held that protection of the Constitution could not be automatically extended to the colonies • They also held that the Philippines, though not a foreign country, was placed outside the provisions of the US Constitution with respect to national taxation Legal History A.Y. 2017-2018 | Ma’am Dy


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• Decisions in the Insular cases was for trade expansion • This decision meant that agricultural products in the US were assured of protection by the US Congress from competition by Philippine products, and US Congress could adjust tariff laws to allow preferential entry of American goods

• The decision also made it justifiable to deny American citizenship to Filipinos even as they were made to swear allegiance to the US

• The grant of legislative power to the Commission meant the influx of borrowed laws as well as of common law doctrines Constitutional Law: Hegemoy of Police Power

• Philippine SC had to use common law and public law concepts to assert colonial authority • State not only has the authority to make rules for the protection of citizens, but it may also regulate private business in such a way that the business of man shall not be a nuisance

• Another example was when the Philippines could not produce sufficient rice and it used to import rice from Saigon. There was a corresponding increase in the Philippines. Government regulated it by regulating the price of rice.

• The SC decided that the rice was private property, and was sacred under the Constitution • The SC adopted the doctrine of “liberty of contract” to complete the cult of laissez faire • Constitutional doctrines born out of business civilization of America were applied indiscriminately to an underdeveloped country

• When the SC decided that chinese merchants could keep their books in chinese language because of due process, it began a process of judicial legislation so beloved among common law judges.

Ascendancy of Substantive Due Process in Constitutional Law

• Pull of business civilization influenced judicial thought • Chinese merchant was also involved, concept of due process in its substantive aspect had been transplanted in Oriental soil

Procedural Law: From Inquisitorial to Adversarial

• Cross-breeding of two systems of law started on Americans’ entry into Manila after signing the Treaty of Partis • They abolished the inquisitorial procedure and adopted the accusatorial system. Thus, it had to secure all the rights of an accused under American rules except trial by jury

• Good examples is the history on admission of illegally obtained evidence • Inquisitorial: illegally seized evidence was admissible • Americans: evidence not rendered inadmissible simply because it has been unlawfully obtained Retention of Private Law and Custom Law

• Pre-existing private laws were left except for certain aspects • Amendments were made to marri age laws • The decision to retain private civil law was not influenced by political demands or remonstrances on the part of the Spanish, but Americans took over after defeating the Spaniards

• Only the exigencies of colonial administration induced the Americans to retain private civil law in the Philippines



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• After Americans pacified the Philippines, they reverse policy of legal pluralism and embarked on policy of assimilation of the IPs

• Western personal law failed to penetrate the ancestral domains of the IPs • The fear of disturbing land titles was a big factor in the decision to protect existing property rights Criminal Law; Lone Survivor in Public Law

• Not superseded by the occupying American colonial adm inistrators • Altered by them to serve the purpose of the new sovereign. Thus most of the crimes against fundamental laws of the state had to be abrogated or mod ified

• The retention of the old Spanish Penal Code (based on that men are rational and calculating beings) founded on the classical free will theory seem incongruous with the American perception of indios as ladrones or half-devil

• SC used the “dangerous tendency test” to determine seditious nature of speech and to convict accused persons The Judicial System Follows the Flat

• US superimposed common-law principles on the existing civil-law system • Doctrine of stare decisis was adopted, had to look at US SC decisions to act as 1 body Statutory Interpretation

• All techniques used by common-law courts are to be employed by the judges in an attempt to di scern the legislature Retention of Civil Code: Provisions on Persons and Property

• Retention of local private law was in accordance with principles of International Law in that regard • Even parts of the Civil Code were superseded • Most signifiant changes were provisions on property, obligations, contracts, business organization, credit, transpo, banking, all core business activities

• An example of hybridization is the mixing of the concept of pater familias in with the common-law concept of the resonable man

Commercial Law

• Always reshaped by the ideology of the dominant economy • Seen from development of mercantile law during the medieval period • It is in the area of commercial law that the attempt of the new colonizers to create Philippine society in the image of America is most evident

• All of these laws are the foundation of a capitalist economy that forms the core of a business civilization • As US tried to create a new legal culture, it had to impose its i deology and its laws even in an underdeveloped economy which was not quite ready to adjust to the needs and ethos of a modern civilization

• US found laws imposed by a feu dal colonizer like Spain inappropriate for a capitalist economy • Law begins to reflect the values and premises which confirm and legitimize the then current distribution of resources



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LYNCH: CHAPTER 8 Transition: Colonialism and the US Constitution Introduction

• China loomed large in the national psyche, and the Philippines was an important way station • US Commercial interests saw potential in the colony for a coaling station, Manila was e ntry-pot to vast Chinese market, and potentially profitable

Sugar Trust and Tariffs

• McKinley administration was conservative • Prime constituency was big businesses • Sugar Trust industry was eager to secure annexation of Cuba, which was well-situated for growing sugarcane, and had long been coveted by on of McKinley’s supporters

• If US were to acquire sovereignty over Cuba, Cuban sugarcane could be imported tariff-free • This would give ST an important advantage over domestic sugar producers • But this was foiled by US Cong ress through the Teller Amendment demanding that Spain withdraw and relinquish its claim to Cuba

• Teller was an advocate of Cuban independence and supporter of US domestic sugar beet indstry • Teller’s amendment required the US government to disclaim any “intention to exercise sovereignty, jurisdiction or control of said island except for pacification.

• Teller amendment was meant to prevent Cuba from being incorporated within the US tariff umbrella. • Sugar tariff was a leading political issue, since McKinley always sought for duty-free importation of sugar • Anti-monopoly sentiment was growing against Sugar Trust, so supporters of sugar beet industry and antiimperialists joined and made the Trust vulnerable in Congress, which was confirmed by the p assage of the Teller Amendment.

• The passage of TA prompted McKinley and his advisors to reevaluate their war objectives Treaty of Paris: Negotiations

• Initial debates focused on how much of the archipelago could be claimed • August protocol: McKinley appointed 5 commissioners to represent the US at Paris negotiations • McKinley said dictates of humanity prompted US military action in the Philippines • “US cannot accept less than the cession in full right and sovereignty of the island of Luzon • Negotiations commenced, and after 1 week, Spain acceded all US demands regarding Cuba, Puerto Rico, and Ladrones

• The Philippines presented the only obstacle to a final agreement • US wanted that the colony should not be split up • Impasse ensued between Spain and US, but Spain had incurred debt, and US was willing to pay debt • Roman Catholic Church attempted to break the deadlock by ensurin g that any transfer of sovereignty over Philipipnes would by by purchase and not by conquest. They said purchase would better safeguard legal titles

• US final proposition was that Spain cede Philippines for 20 million. Unless agreement was made, war would resume. Spain responded with 100 million but eventually accepted. Legal History A.Y. 2017-2018 | Ma’am Dy


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Treaty of Paris: Ratification

• It was by no means certain that Senate would ratify the treaty • Republicans were against because they said that consti prohibits governing of a foreign country • Vest proposed an amend ment to treaty, but Bryan urged for ratification, insisting that it would clear the way for recognition of a Philippine Republic.

• Treaty was left unamended and ratified • The Treaty is generally regarded as establishing a foundation of the constitutional system of the Philippine Republic. Opportunity for preventing imperial expansion certainly had passed.

Presidential Election of 1900

• US colonialism remained open. US Presidential election presented public with opportunity to repudiate or uphold colonial endeavor by voting for or against McKinley

• Bryan, opposition of McKinley, declared that paramount issue was imperialism. Said Filipinos cannot be citizens without endangering our civilization.

• Taft told Root that until it is settled that McKinley is to be reelected, radical insurgent leaders will resort to every expedient to give American voters the impression that the task of settling the country is hopeless

Spooner Amendment of 1901

• With elections over, US congress resumed delibs • General consensus what that president’s power did not go beyond necessary • Passage of Spooner Amendment made the Philippine Government civil in nature, deriving its power from Congress and not from the President. The amendment merely ratified actions already taken by the President and his subordinates

• Powers included alienation of forests, minerals and public lands not covered by Spanish documentation • This confirmed subservience to big businesses, particularly the ST • Spooner’s proposal was attached to Military A ppropriationsBill • Sole reason was to enable the executive branch to grant permanent franchises and dispose of lands and mines • Sale of public lands and allowances of mining claims impossible under Spooner Bill • Blanket prohibition on disposition of public lands including timber thereon or minig rights were appended to the amendment

• Commission however interpreted the secretary’s telegram as providing authorization to continue issuing timber licenses

The Constitution and Colonialism

• Comission’s undetected defiance of Congress would embolden it in future land disputes • The Paris Treaty failed to resolve several fundamental constitutional questions. The most basic was whether the US could acquire sovereignty over people without securing consent of at least majority

• Does the constitution follow the flag? • Magoon averred that the Consti did not follow the flag, he believed that Congress could do as it pleased unless an unlikely political uproar among the US e lectorate, over a distant colony inhabited by Asians Legal History A.Y. 2017-2018 | Ma’am Dy


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Insular Decisions

• Last hope was with the US SC, civil rights of people within the colonies ware of peripheral concern • Most court decisions concerned commercial interests affect by legal realignments which followed the colonial expansion

• W/N territory acquired by the US by cession from foreign power remains a foreign country within the meaning of tariff laws. Court held that it wasn’t. They said that Puerto Rico ceased to be a foreign country but is now territory of US. But further decisions fell back on argument of Magoon. Said that territory in Puerto Rico that belongs to the US but not part of US within revenue clauses of Consti.

• Insular decisions evoked variety of actions. Domestic agricultural producers were delighted. Local sugar producers could not compete with the American producers. Duty-free importation of sugarcane from colonies was no longer certain, tariff fees would have to be fought out in congress. Sugar beet owners were delighted.

• Filipino elites hardly reacted, nor were they aware of the debates • The commission lead by Taft was not ignorant. • Constitutional standards adhered to in the US were not automatically applicable in the colonies. Example was right to jury by trial.

• Most dangerous variation was WHC, the writ was guaranteed i n McKinley’s instructions and the Organic Act, but there continued to be men confined without warrant due to ignorance.

NOTES IN CLASS:

• • • • • • •

Started with war of US and Spain Able to push colonization Plan was to attack Spain because it focused more on defeating economic hold of Spain by removing its colonial power Sugar Trust wanted Cuba, wanted to control entry of sugar in US Congress passed Teller Amendment which stated that they will not colonize Cuba, had to look elsewhere for sugar Teller Amendment: lost source of sugar cane How did US gain control of Philippines under the treaty?

• Entitled US to occupy Philippine land • Gave US power over Philippines to change government to suit needs of their citizens’ businesses • When they colonized Philippines, it was to further and not just p rotect their interests • Main reason to acquire Philipipnes: big business interests, laws are suited to them, de emed rights to Filipinos to protect the interest of the government

LYNCH: CHAPTER 9 Colonial Dichotomy: Attraction and Disenfranchisement White men and Indios

• Indios applied to indigenes throughout the vast Spanish empire • Referring to all native peoples within their empi re Legal History A.Y. 2017-2018 | Ma’am Dy


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• First European image of los indios came from writings of Columbus, who described the cannibalistic Carribs • Many synod participants strove to justify the colonial imposition o the basis of natives’ alleged cultural inferiorities • Colonists and friars had a d isagreement on who should be the guardians, Church or colonists? • Philippine officials were generally indiscriminate in labeling of native peoples • All those with Malay blood were referred to as los indios • The term signified legal status, as did “Spaniard” and “Chinese” • By 1900, the indigenous inhabitants of the Philippines often called themselves Filipinos • The abolition of the tributu was accompanied by the end of the legal classification as mestizo and indio • The term “mestizo” no longer only referred to Chinese and mestizos, but had acquired the meaning of Spanish mestizos or Eurasian in general

• Spanish mestizos with pale complexions were sometimes allowed to assume category of Spaniard even without the benefit of cedula/royal decree.

• But this was only before the eyes of the Indio population • Spanish legislation regarded the indios as the equivalent of legal minors or immature wards • This resulted in double-edged paternalism • Spanish had to respect native rights and b ehave properly, but at the same time, native peoples could not bring suit against a Spaniard who violated their rights unless another Spaniard sued in their behalf

• In general, los indios were distinguished between whether o not they submitted so Spanish rule or not • Limited to “dociles” and “feroces” or binyag and hindi binyag. People in the latter group were called unfaithful • Local leaders were initially referred to as principalia or cacique, but later alluded to form er or current officials, and native or Chinese mestizo landlords

• Spanish descriptions of indigenous cultures were universally negative. Spanish officials not only believed in superiority of Hispanic cultures, but also believed that pre-Hispanic cultures were a “manifestation of the devil”

• Spaniards had no monopoly on ethnocentrism • The explanations for human diffe rentiation based on skill color were justified by an elaborate evolutionary social theory that was applied by the US colonial officials.

• According to prevailing theory, White people were at the apex of human evolutionary development. In practice, what was presumed desirable for Whites was de sirable for Indians.

• The use of skin color determined a person’s value • One of the tactics used by anti-imperialists was to stir up colorphobic anxieties • Americans opposed to imperialism also entertained the hope that large numbers of young recruits would refuse to fight in a faraway colonial war, but the opposite occurred

• Many atrocities were committed by soldiers on both sides • Worcester was more inclined to ascribe Filipino shortcomings to environmental factors • To many missionaries, the most congenial way of expressing belief in Filipino inferiority was to refer to the people as children

• Pro-white prejudices had become so pronounced that Roosevelt appointed a special commissioner for the vague purpose of studying sociological questions

• Commissioner Fortune found that the prevalent attitude in the white community was dominated by race hatred and personal vituperation. It was attributed to the presence of so many Southerners

• The problem was enduring Legal History A.Y. 2017-2018 | Ma’am Dy


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• The Schurman Commission recognized the importance of the distinction when it protested against the suggestion of calling the archipelago a colony

• A colony is a depend ent political community settled or prospectively to be settled to a conside rable degree by citizens of the dominant state.

Illustrados and White American Men

• Ilustrados almost uniformly saw themselves as the legitimate leaders and spokesmen of the Philippine people • They succeeded in convincing the Americans and other Filipinos that they were the rightful leaders • Even though US recognized the leadership, the ilustrados who collaborated with them were also victims of prejudices

• They were regarded as the inadequate apex of human evolutionary development among native peoples • The Taft Commission learned that there had been complete lack of social contact between ilustrados and military officers

• Taft asserted that the incapacity of these people for self-government is one of the patent facts that strike every observer, whether casual or close

• Taft’s ally, Dean C. Worcester was openly hostile to Hispanicized Filipinos and considered the utter unfitness of these people to run their own affairs to be obvious

Policy of Attraction: Taft’s Most Important Discovery

• He realized that in order to neu tralize the political threat to imperialism at home in America, Filipinos not only had to be conquered but converted

• This effort was encompassed in the Policy of Attraction • Its premise emanated from Taft’s discovery which was that Filipinos were proud and sensitive and quick to resent any implications of being an inferior race

• Once he realized that ilustrados yearned to be treated as legal and social equals, Taft crafted his policies accordingly • He promoted the creation of a receptive ilustrados and promoted the creation of a system of Filipino-American clientelism

• Once the tie had outlived itself, Taft could and did discard it with no visible regret • The key to success was the ilustrados were treated as equals to the Americans • Balls attended by high officials included the most prominent Filipinos • The social courtesies were accompanied by an important change in the legal status of the natives • Within the colony, all laws applied equally to US citizens and Hispanicized Filipinos Policy of Attraction: Philippines for the Filipinos

• The slogan was meant to allay fears among Philippine elites of large-scale foreign exploitation that might exclude local participation

• Taft was prepared to find that almost any form of US investment would make for the welfare of the peoples in the colony

• Any economic activity was justifiable, since Taft believed that any investment would eventually redound to the benefit of the Filipinos



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• His belief was based on the longstanding assumption that wealth generated by capital-intensive development eventually trickles down and b enefits everyone

• This attitude was based on the premise that capital formation must be given precedence over people in the shortterm allocation of state resources

• Despite Taft’s support for large foreign profits, the attraction policy generated opposition among American businessmen who had arrived to make quick fortunes

• This helped align Taft with the public eye of the Filipinos Policy of Attraction: A Retrospective

• The policy of attraction applied to at least all Hispanicized or Christian Filipi nos, unofficially, it was geared towards the ilustrados

• The policy provided stark contrast to military behavior and quickly bore frui t • A large number of prominent Filipinos, lead by Felipe Buencamino, were declaring their allegiance to the new colonial sovereign in a manifesto submitted to the commission

• It wards that the revolutionary government of Aguinaldo and his followers were robbers, assassins etc., and they claimed to accept and respect US regime

• Taft’s opinion reappraisal of Filipino capacities never changed • In his opinion, Filipinos were to ignorant to understand what their rights were or how they can be asserted • According to him, colonial policies were d esigned to prepare Filipinos for popular self-government • The policy most benefited those who prospered under the discredited Spanish regime • It served to re-entrench a Philippine oligarchy • The Internal Revenue Law (IRL) of 1904, which established the basic tax structure for the American colonial era • It was passed after debate among remaining commissioners, especially over taxes on agricultural land • Land taxes levied were frequently deferred, forgiven, and sometimes refunded • The end result of the policy of attractino was to diminish the integrity of political and legal institutions • What emerged was a political system which gave the people the form of democracy without its substance Ilustrado and Native

• The empowerment of the ilustrados was enhanced by the disdain for indigenous cultures • Taft observed that the so-called educated class boasts that there is a great difference between them and the common people

• It was the ilustrados’ desire to combat the extension of liberal institutions to Filipinos • They claimed that any reforms such as equalizing the tax burden or treating ilustrados the same way one treated ordinary folk was anathema

• This view was contrasted sharply with the thinking of Jose Rizal, since Rizal was convinced that by understanding the pre-Hispanic Philippines, Filipinos could understand themselves

• Rizal glorified the indigenous past • Rizals’ failure was understood to confirm the history of failure which ended the birth with the ilustrado republic • The ilustrados identified more with the colonizers than with their own people • They were anxious to sever cultural links with Philipp ine masses



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Collaborative Counterweight

• The policy undermined the ethnocentric argument that Filipinos were incapable of governing themselves • It ilustrados were the legal equals of their colonial overseers, it was difficult to explain why they were incapable of running their own government

• The existence of un-Hispanicized populations provided the needed political counterweight • The US labeled these people as non-Christian tribes • The Hispanicized peasantry was lump ed together with the Filipi no elites, and Worcester insisted that the people were to be treated as a class. He claimed that non-Christians have two things in common: unwillingness to accept Christian faith and hatred of Filipino people who profess it

• Once the Christian/Non-Christian dichotomy was reified into Philippine Law, it became a static and divisive symbol to Philippine elites

• It primarily served the purpose of empowering the colonial regime and enhance its legal access to colony’s natural resources

• Publicity focused on non-Christian tribes ne utralized opposition in the US, since it highlighted the savageness, and need to aid and uplift them on the part of the US

• Ilustrados objected to the attention, and expressed outrage at arguments that Filipino elites could not b e trusted to behave in a responsible and principled manner

• The Non-Christian tribes p osed a special challenge in this regard, and they were treated differently than the presumptively Hispanicized peasantries

NOTES FROM CLASS:

• Who are the Filipinos at the time? • Natives were seen as cannibals and savages • 2 criteria: civilization and religion • Mestizo: term was first used for Chinese, played an important role with illustrados, viewed as chinese Filipinos, or mix of Spanish and Filipino

• Indios: not penetrated by Spanish colonization • Racism: why they look down on Filipinos • Colorophobia • Taft observed that ilustrados belittle the countrymen • Policy of Attraction • US will attract ilustrados by treating them fully that justified any economic act • Did the Americans exploit n on-Christian natives? • Didn’t extend rights to non-Christians, it’s called collaborative counterweight because it counters ilustrados’ arguments of self-government

LYNCH: CHAPTER 10 Distant Overseers: US Based Participants and the Organic act of 1902 The US President Legal History A.Y. 2017-2018 | Ma’am Dy


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• McKinley and Taft were more sensitive to the aspirations and potentials of the Filipinos • Bot left enduring impri nts on colony’s legal and bureaucratic infrastructure • McKinley made the decision to acquire a colonial empire, and he established the legal and bureaucratic foundations of US colonization

• He exercised absolute political power in the Philippine Islands • The only significant check to his p owers was held by Congress. As demonstrated by the Spooner Amend ment, Congress was willing to confirm executive decisions pertaining to the Philippine Islands

• McKinley had interests to promote the interests of big businesses Department of War/Bureau of Insular Affairs

• The Interior Department regained its jurisdiction over all US territories and possessions • The Department of War, by contrast, had no bureau or division capable of handing novel supervisory work pertaining to colonies

• Officials in the war department were quick to fill the void • Division of Customs and Insular Affairs was established in the Office of the Secretary of War • The division was given administrative responsibility over all matters relating to the customs of the Islands of Puerto Rico, Cuba and the Philippines

• the DCIA slowly expanded its competence and reputation as a colonial information office • McKinley had decided in favor of the war department, and appointed Elihu Root, a corporate lawyer • Root believed that he should help businessmen operate to the fullest advantage of the law • Root’s clientele included several economic giants, include the Sugar Trust • Root’s rhetoric helped obfuscate the shocking i nnovation in US constitutional jurisprudence: some people involuntarily within the sovereign realm of the US enjoyed no constitutional rights

• The DCIA was reorganized into the Division of Insular Affairs: the only civil division in the war department • The DIA was upgraded by an Act of Congress into the Bureau of Insular Affairs • The business assigned to BIA embraced all matters pertaining to civil government in the island possessions of the US subject to the jurisdiction of the War Department

• The Philippine Autonomy Act required the governor-general to annually make official report of the transactions of the Government of the Philippine Islands to an executive department of the US

• The BIA was the depository and clearing house of all official documents and records pertaining to the Philippines • The most important actions taken by Root were the drafting of McKinley’s instructions to the 2nd Philippine Commission and the Organic Act of 1902

• They ordered the commissioners to rep ort directly to the secretary of war, and provided that the insular regime would possess a significant degree of autonomy

Congress and the Organic Act of 1902

• The Philippine Bill would have profound impact on the allocation of legal rights to land, forestry and mineral resources

• Opponents in the Senate were Dem ocrats, and objected to annexation. Keeping people in a purchased colony as subjects was not a constitutional purp ose.



The Organic Act: Preliminaries

• Believed that in the development of the islands, it is essential that opportunity be afforded for the sale and settlement of the enormous tracts of public lands

• As such, Congress authorized homestead disposition and public auction sale • The Commission saw no need for limits on potential US cor porate investors • It recommended that size restraints be placed on acquisitions by small famers • This highlighted the commission’s preference for big businesses • For people living on Crown lands, the commission recommended that they be given an opportuni ty to perfect their titles

• This implied that aboriginal titles/native titles were “imperfect” and thereby undermined the symbolic and legal efficacy of customary land rights

• The proper term was “equitable title” • A major stuggle loomed, particularly over the allowable size of corporate holdings within the public domain • One section directed the commission to promulgate a law for allocating legal rights to public land • Another provision empowered the regime to classify “public lands” as ag ricultural, forest or mineral • Taft and his commission actually wanted the power to sell or lease to cor porations large tracts of land • Root claimed that the Spanish government never permitted the indigenes on so-called Crown lands to acquire paper titles. He said that they did not want them to get it

• In Root’s words, the US was the great owner, landed proprietor, in the Philippines • One of the best things we can do is give these natives title to their land they occupy • Taft recommended a compromise whereby land could be leased for 50 years to large corporations • Democrats accused Taft and his commission of trying to assist foreigners in seeking enrichment, and that selling large tracts of land would be disastrous to both the Filipino and American interests

• As the final vote for the Philippine Bill neared, the insular regime arranged for a leading Filipin o collaborator to travel and testify, Buencamino said that no question has been raised in the Philippines regarding Crown lands

The Organic Act: Content

• Section 5 contained an “emasculate” bill of rights, omitting any right to trial by jury or to bear arms • Also provided for a bi-cameral legislature, which would be made up of the commission as the upper chamber and an elected assembly as its counterpart

• The bulk of the bill dealt with provisions pertaining to the allocation of forest, land, and mineral resources • The commission was not given free reign to allocate resources in the manner it wanted • Congress placed specific restrictions on the size of any prospective corporate land acquisitions • A loophole exempted corporations engaged in irrigation from holding interests in other corporations which owned and controlled up to the statutory limit

• Section 12 placed “public” lands under the control of the insular government • Section 13 authorized the regime to classify public land according to its agricultural character and producitveness • Restrictions were placed on the alienability of royal forest lands • The distinction between agricultural and forestry lands remain one of the foremost legal barriers preventing the recognition of ancestral-domain rights



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• It also ordered that the commission shall immedi ately make rules and regulations for lease, sale, or other disposition of public lands other than timber or mineral lands

• Section 15 empowered the commission to promulgate legislation for granting or sale to actual occupants and settlers of up to 40 acres

• Section 16 mandated that in the allocation of any part of the public domain, preference shall be given to actual occupants and settlers

• Congressional ignorance about Philip pine conditions enabled Taft and allies to navigate the administration’s draft through Congress and keep it from being substantively overhauled

• The Philippines soon became a bore, and US Congress never again enacted any major legislation pertaining to Philippine Natural resources

• The Autonomy Act of 1916 established a Philippine legislature and empowered it to enact laws for allocating legal rights to natural resources

• But it left intact most of the Organic Act’s natural resource provisions Commercial Interests

• There was almost no support among US businessmen and corporations for colonial expansion • The prevailing concern in 1898 was that a war with Spain m ight dampen the ongoing d omestic business recovery • Despite glowing reports from Taft, direct US investments in the colony were comparatively meager • Most were concentrated in public utilities, mini ng, and industries geared for export to US market • The establishment of an exclusive free trade relationship between the US and Philippines during 1909 marked profound change in the colonial economy

• Congress enacted Payne-Aldrich Tariff Act, which removed most US-Philippine trade barriers and established liberal quotas on US imports of Philippine Tobacco and sugar

• Free trade hastened the economic integration of the colony into the economic orbit of the US • It transformed the Philippines into a colonial appendage of the American economy • Agricultural and forestry exports were dependent on the use of large amounts of land, but restrictions on corporate from acquiring direct ownership of large landholdings

• The Philippine Commi ssion strove to promote direct ownership by US corporations, but its efforts largely failed • There was no deliberate policy of promoting industrialization as Philippine industries would have been natural competitors of their US counterparts

NOTES FROM CLASS:

• Participants in organic acts • 1st 3 presidents: Republicans • Organic Act: established by US to manage lands • What did Organic Act provide? • Profound and enduring impact on resources of the Philippines • Significant because commission wasn’t given free reign in allocation of resources • Organic Act: act of Congress, part of Treaty of Paris • But not exactly the same because not ratified by the people • Contains bill of rights, but not complete Legal History A.Y. 2017-2018 | Ma’am Dy


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Abridged bill of rights • Abridged • Meant it can be repealed by Congress since it’s not in the constitution • Didn’t want Consti to follow the flag to control our rights regarding property in the Philippines • Bill of rights: dealt more with rules regarding • US was focused on expanding, Organic Act should have been able to accommodate US investment, but business people didn’t support it

• Organic Act provided for expanded trade between US and Philippines, free trade focused on creating of big businesses, but didn’t encourage it because of fear of competition

LYNCH: CHAPTER 11 Insular Actors: Governors and Commissioners Military Regime by fiat • As military governors, they legislated by fiat • Their enactments were extensive and had an important influence upon the subsequent government of the archipelago

• Filipino revolutionaries were also consolidating their positions • By 1898, revolutionaries had defeated the Spani ards almost everywhere but Manila, but Spanish formally surrendered after a sham battle to General Merritt Philippines informing them of fundamental rules of international law that pertained pertained • Merritt issued proclamation to Philippines to military occupation

• It was based on a letter from McKinley: Article II expressed commitment by the military commander to protect the personal and religious rights of all persons who cooperate with the US

• Article VII reiterated that so long as they preserved the peace and perform their duties toward the representatives of the US, the Filipino people will not be disturbed government being established is of military occupation • Article III was most important: it proclaimed that the government promulgated an array of Gen eral Orders • The office of the military governor promulgated • Most important was GO 20: reconstituted the audiencia into the Philippine SC, and authorized it to exercise the same jurisdiction over civil and criminal matters that it previously possessed Filipino lawyers • It consisted of 9 judges, including 3 US Army officers and 6 Filipino native and mestizo elites who were eager to • This highlighted the presence of conservative elements among native collaborate with the new colonial overlords

• General Otis sent first communique to Gen eral Aguinaldo • Otis refused to acknowledge that the Filipinos had assisted the US in defeating the Spaniards Warned Aguinaldo that they should submit to US • Warned Assimilation Proclamation: Proclamation: it declared that the the mission of the US is one of • McKinley issued his Benevolent Assimilation substituting the mild sway for abritrary rule state of property rights • Otis reworded the proclamation including assurance of continued protection by colonial state documented during the Spanish era Legal History A.Y. 2017-2018 | Ma’am Dy


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• In the provinces, it was apparent that more troops were needed for victory. 6 months before the election, an amnesty was announced by General MacArthur. MacArthur. It was available to Filipino citizens who would for mally renounce all connection with the revolutionary forces and subscribe to the d eclaration and accepting sovereignty

Philippine (Schurman) Commission

• McKinley’s non-military operations were limited by a lack of information. To remedy the problem, he appointed a five-member commission tasked to go to the Philippines and discover ways to promote the most human and effective extension extension of authority authority nvestigative body, body, its only power to make recommendations to the president • The Commission was only an i nvestigative

• The first commission was headed by Schurman, a sympathizer of anti-imperialists • It arrived in the Philippines a month after the outbreak of hostilities • Its investigations were limited to territory secured by the US Army in Manila and its suburbs • It issued a legally non-binding proclamation added the possibility of home rule and non-exploitive colonial government Schurman and co-opting the two of the remaining members • Worcester acquired his power by outmaneuvering Schurman Philippine (Taft) Commission: Background

• Had power to enact laws in pacified regions • There was no US precedent for appointing a colonial legislative commission • The commissioners were directed to devote their attention to establishment of municipal governments in which the natives shall be afforded the opportunity to manage their own local affairs found in the US Bill of rights, while omitting trial • Principles essentially consisted of the safeguards and entitlements found by jury and right to bear arms

President/Commissioner William Taft

• Taft was rumored to harbor anti-imperialist sympathies • He was opposed to the colonial acquisition of the Philippines but did not believe that the Filipinos could govern themselves

• His ambition was to secure an appointment to the US SC, which prompted him to demur to the President’s request at first problem of the Philippines was that of reforming the government • He believed that the problem

• Taft concluded that the profitability of the colonial endeavor was dependent on the speedy introduction of American capital Tariff Act) and • He secured the mutual free trade agreement between the US and Philippines (Payne-Aldrich Tariff guaranteed the tenure of Worcester

Commissioner/Secretary Worcester: Introduction

• Served in both the first and second commission • Was the most important person in terms of Christian tribes and allocation of legal rights to land and other natural resources

• Promoted disenfranchisement of indigenous populations, particularly un-Hispanicized regions of the colony Legal History A.Y. 2017-2018 | Ma’am Dy



• First visited the Philippines as a student volunteer on a zoological expedition • His travels made him a unique American expert on the Philippines • Worcester’s appointment welded him to the Philippines until his death Tagalogs and other Hisapnicized Filip inos was well-known, said that natives were unfit for self• His contempt for Tagalogs government

Commissioner Worcester: Worcester: Early Allegations

• Allegations were made against him saying that he illegally p rofited from his governmental position parcel • It arose from a decision to construct a building for the Bureau of Government Laboratories on a certain parcel • But the matter ended and there were no more public complaints after that • Worcester’s skills at political infighting were becoming so impressive, and his backing apparent, that only a US colonial official on a mission of political suicide would dare challenge challenge him

Commissioner Worcester: Worcester: Ilustrados’ Nemesis

• Worcester had a racist outlook on them • Worcester filed a libel suit against the publisher of an editorial asking for damages • After criminal trial, the defen dants were convicted • Worcester obtained possession and name of the paper • The response of the local press was loud and bitter • Worcester made provocative remarks in a Young Men’s Christian Association meeting, saying that Christian Filipinos could not be trusted to treat the non-Christians in a just and humane manner lobbying against Philippine indendence • Spent most of his last month lobbying • The non-christian tribes played a big role in his advocacy later, he returned as a businessman • Two years later, Other Philippine (Taft) Commissioners lawyer, instrumental behi nd the revised Penal Code • Wright was a prominent corp oration lawyer, • Became US Secretary of War • Unimportant shizz Philippine Commission: Process and Output

• • • •

Commissioners enjoyed a large large degree of de facto autonomy because of distance Costs of the commissioners were also borne by the regime Bill of rights must rest solely upon the willingness of the Commission to have have it regarded Taft reserved for himself responsibility for the civil service, Cron property, property, public lands and religious orders forestry, minerals, fisheries, h ealth, immigration etc • Worcester was in charge of agriculture, forestry,

Taft and his successors magnified the office and minimized the importance of the commission • Throughout his tenure, Taft • The commission’s penchant for constantly refining its handiwork was exemplified in the Municipal Code • While the commission opted to recognize some documented Spanish ri ghts, it also legislated profound and enduring changes in Philippine land laws




• Its intended effect was to empower the US regime and Philippine elites by legally disenfranchising millions of rural people

LYNCH: CHAPTER 12 Insular Actors: Subordinate Officials and Politicians Continuity: Municipal Code

• Local elites began seeking re-legitimation of their political status • First elections under US supervision were held during May 1899 • The primary motive behind the electoral exercise was not a desire to secure the democratic consent of those being governed. It was the “necessity to consolidate captured territory and to gain support of local leaders”

• A board consisting of two ilustrados and 3 US citizens was created and told to submit a plan for organization of municipal governments

• Municipal Code had been drafted by Worcester which was based on the unimplemented Spanish Municipal Law of 1893

• McKinley ordered commission to provide municipalities with a greater degree of power and autonomy than they had previously possessed

• It contained a general rule that “in all cases the municipal officers who administer local affairs are to be elected by the people”

• The legislation extended to electoral franchise to all males, 18 years or older, who resided in the province for at least 6 months preceding any election

• This was part of an effort to preempt US miners who had been moving into the province in large numbers and were threatening to take over local political organizations

• The municipal franchise ensure that miners would remain a minority in any municipal election • When the municipal code was enacted, the commission provided much more restrictive electoral franchise in Hispanicized areas

• Justified on the fact that masses of the Filipinos were not fitted to exercise a share in governing their communities • Only extended to males 23 years of older, who held public office during the Spanish regime, who cuold read and write English or Spanish, or who paid minimum of 30 pesos tax per year

• • • •

Limited because voters eligible to vote were only 2.5% of colony’s total population Municipal Code operated to p erpetuate stratification rather than promote democratization Provided also greater degree of municipal autonomy It provided corporate status to each municipality organized in Hispanicized areas and classified them according to population

• Section 39 was key: authorized municipal councils to de sign their own projects and allocate • Money would come from the Philippine real estate tax: this reflected Worcester’s belief that “there should be a very direct relationship between source of wealth and things which are made the basis of taxation

• Problems soon developed, many municipal councils used the funds as payment for their own salaries Legal History A.Y. 2017-2018 | Ma’am Dy


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• The commission responded by specifying the percentage of annual revenues which could be allocated to salaries • This made for a highly centralized form of government Innovation: Provincial Government Act

• Commission provided for the reorganization of provincial governments in Hispanicized areas a week after municipal code was enacted

• Primary criterion was whether “armed insurrection exists in any form” in the province concerned • Revenues were drawn from real estate taxes, and the commission provided for return of forest revenues to provinces and municipalities

• Each province was governed by 3-man board consisting of governor, teasurer, and supervisor who were i n-charge of public works

• The provincial board legislated for the province • Initially, all members were app ointed by the military governor or commission, then subsequently elected by principalia

• At end of Taft era, 18 Americans still served as provincial treasurers compared with 13 Filipinos • This enabled commission to retain effective control of most provincial governments • In almost 2/3 of provinces, incumbent appointees were elected • Filipino appointees who had initially secured their appointments by way of Partido Federal overshadowed winners from US army

Federalista Party

• Partido federal grouped with native elites who favored imposition of US colonial rule. They identified themselves with the Spanish government

• The party grew rapidly because of its “politics patronage” which facilitated the economic and political emergence of the ilustrados during waning decades of Spanish regime

• • • •

Enjoyed the confidence and favor of the new colonial overlords Wright began to appoint Filipinos with other political affiliations, which created animosity b etween Federalista Party Its demise was primarily attributable to the fact that provincial governors were no longer appointed Confirmed by the majority winning by Partido Nacionalista, including Quezon and Osmeña, pro-independence party

Nationalista Party

• Assembly elections proved that political independence was a popular aspiration • US officials believed that neither Quezon nor Osmeña really wanted independence The Philippine Assembly

• The official justification was the need to introduce Filipinos to institutional forms and processes of self-government • The Organicc Act of 1902 mandated the creation of a bicameral Philippine Legislature which was to be established two years after the completion and publication of a colonial census

• Commission was to serve as upper, and the assembly as lower • Taft characterized the assembly as being “generally conservative” and said that Philippine Inde pendence was at least a generation away Legal History A.Y. 2017-2018 | Ma’am Dy


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• Most legislative battles centered around efforts to weaken or eliminate bureaucratic centralism that characterized the regime

• The antagonism between the commission and the assembly had become so g reat that it was even impossible to secure passage of the annual appropriations bill

Philippine Legal Profession

• The profession was largely supportive of the colonial re-imposition • Filipino judges appeared willing to sanction the designs of the incoming US regime • Taft commented that a typical Filipino judge does not expect to work more than 2 hours a day and rest the of the time in leisure

• Commissioners were inclined not to appoint Filipino judges in CFI, but members of the Bar wrote to them demanding that all judges be Filipinos

• The small number of US citizens in the colony left the commission with no alternative but to appoint only Filipinos as justices of the peace

• Justices of the peace were not paid salaries • Taft’s opinion of the legal profession was not better than his opinion of the judiciary • Perhaps because of such contempt, Filipino lawyers opted to practice in a private capacity • A Hispano-America hybrid was created instead and this ensured a role for both US and Filipino lawyers • Most substantive laws were retained from Spanish era • This assertion was misleading insofar as natural resources and non-Christian tribes were concerned, i t also ignored the Sedition Law

• Otis promulgated a new code of criminal procedure. It was designed to do away with arbitrary practices • Malcolm rarely uttered a critical remark about the regime or its laws, including those which pertained to natural resource rights. He was also oblivious to the plight of the poor

• His aversion extended to Filipino political elites, many of whom were his former students • Malcolm rued the lack of any advocacy for legal reform, but he shunned any responsibility for it LYNCH: CHAPTER 13 Disenfranchisement Qua Paternalism: Non-Christian Fiefdom of the US in the Philippine Islands Introduction

• Social scientists tended to divide the population into several different categories • Common labels included “civilized, wild, Christian, pagan” etc. • This required official definition of people belonging to ethnic groups deemed to be on the bottom of the Philippine Socio-cultural hierarchy

• Taft realized that any effort to define and categorize the Philippine people on the basis of ethnicity was a formidable task

• Taft and Worcester realized that political advantages could be gained by playing up the Christian/Non-Christian dichotomy Legal History A.Y. 2017-2018 | Ma’am Dy


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• Worcester began to classify ethnic groupings according to language • He treated Filipino tribes as biological specimens • Characterized the Negrito and Malay groups as weaklings of low stature who were at the bottom of the human species in matters of intelligence

• Blumentritt never visited the colony but he believed that he could explain the presence of un-Hispanized populations through the three-wave migration theory

• According to the theory, non-Christian tribes, at least in Luzon, comprised the 1st wave of Malays to reach the archipelago

• 2nd wave had a higher civilization and conqu ered older population groups • 3rd wave was the Islamic wave, which was halted by the Spanish • This has been discredited as racist Bureaucratic Beginnings

• Schurman Commission recommended that policies in the Philippines be limited to semi-civilized and barbarous people

• The Bureau of Non-Christian Tribes was created without the benefit of public hearings • It fell under Department of Interior headed by Worcester • Its primary task was to conduct ethnog raphic research among un-Hispanized people, including Muslim M indanao • Ilustrados objected because they were ashamed of the cultural heritage they shared with indigenous people and BCNT reminded them of that link

• • • •

The BCNT was short-lived, possessed no real power They devoted much of their time to preparations for a Philippine exhibit at the 7-month long exhibit Americans perceived the exhibit as an opportunity to generate support for the colonial e ndeavor People were shipped from the Philippines in harsh conditions

US Indian Precedents

• Barrows inquired into the effectiveness of the General Allotment Act of 1887 • US government had followed a policy of dealing with the Indians as tribes • Barrows was willing to ignore the longstanding doctrine of aboriginal title whereby Native Americans were recognized as holding undocumented but constitutionally protected property rights over their ancestral domain

• Barrows knew of aboriginal titles but kept quiet and thereby lent his support to regime’s effort to deny any recognition of ancestral rights

• Since Consti did not extend to Philippines, so did aboriginal titles Harbingers of a Policy

• An important issue was also local government • The regime’s first response was through establishment of a civil government in Benguet • The law created a broad electoral franchise because the commission was determined to prevent a growing number of US miners from gaining political control over the mineral-rich region

• Two months later, the commission promulgated acts that curtailed the electoral franchise for at least Christians



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• Most important policy recommendation was to keep Ifugao in contact with Americans by drafting the men into the Philippine Army on a 6-month rotation

• The governor, who was subject to approval by Worcester, was authorized to dispossess and relocate n on-Christian populations, subect to the approval of Worcester, whenever he deemed it necessary in the interest of law and order

• Failure to comply with governor’s directive made an errant native liable for 60-day prison term • One week before the Nueva Vizcaya law was enacted, the Atty-General issued an op inion regarding land taxation • An incentive was provided for collaborating local elites to extend their claims and recognized land rights into ancestral domains

• Worcester fretted in public that non-Christians would be taken advantage of by better educated outsiders, but raised no public objections to the Christian tax exemption

Township Government and Special Provinces

• The Nueva Vizcaya model for local governments provided Worcester with the means to secure his authoritarian grip over un-Hispanized populations outside the Moro province

• Worcester’s jurisdiction was further enhanced by two laws enacted by the commission • The Special Provincial Act (SPGA) and Township Government Act (TGA) had been drafted by Worcester • They repealed all previous legislation pertaining to local governments in non-Christian, non-Muslim areas • These laws placed “under the very direct control of American officials” • The rationale for these “special laws” was that the wild nature of un-Hispanized peoples required special forms of governance

• It empowered the secretary of the interior to appoint all local officials in the provinces and municipalities covered and to give order to provincial and municipal governments in special provinces and overrule their decisions

• The SPGA authorized the commission to appoint 5 provincial officers: • Governor • Secretary • Treasurer • Supervisor • Fiscal • Residence in province was not required as a precondition to any appointment • Section 19 of the SPGA provided for unique tax: it authorized an annual tax of 2 pesos on all males over 18 but under 60 years of age. Anyone who didn’t pay was obliged to work for 10 days on the roads

• Worcester referred to the imposition as the most important tax in the special government provinces • By 1908, over 20,000 Ifugao men were paying tax by way of manual labor • The TGA authorized every male over age 17 to vote for his respective township president and vice-presiden t, as well as barrio councilor provided that he lived in the community for at least 6 months prior to election

• Most towns were allowed to appoint township officers in areas where non-Christian inhabitants had not progressed sufficiently

• Section 62 resettled natives near the village center. It authorized the provincial governor to evict them when deemed necessary and to relocate them

• Neither SPGA nor TGA made any provision for providing the process, let along compensation, to people unwillingly removed from their ancestral domains Legal History A.Y. 2017-2018 | Ma’am Dy


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• The only avenue for redress was through a “popular representative” • It authorized local presidents to elect the representative by majority vote at thri first provincial meeting each year • Section 7 of the Organic Act ensured that even after the Philippine Assembly was established in 1907, Worcester could retain his powers over the Special Provinces and Township Governments.

• Worcester enjoyed almost free reign with matter pertaining to Non-Christian tribes Moro Province: US Army Enclave

• Secretary Worcester would have liked to possess legal jurisdiction over all un-Hispanized peoples, including Muslims • The resistance of the Moros to the colonial imposition was fierce and implementation was delayed • Mindanao, Sulu, and Palawan were placed under a newly created Military District of Mindanao and Jolo, which was re-designated as the Department of Mindanao

• Initially, relations in the Department and US soldiers were friendly, not formal agreements were signed except for the Sultan of Sulu, who agreed to sovereignty of US in exchange for monthly salaries

• US military officials promised that due consideration would be given to Moro laws and customs • After consultations, Moro Province was established by the Commission and existed concurrently with the military’s department

• The Moro Province was placed under direct supervision of the Civil Governor • Unlike anywhere else in the colony, US officials assumed that the ind igenous populations within the Moro Province possessed a sufficient body of customary laws for resolving conflicts and otherwise preserving peace and order

• Commission authorized the Legislative Council to enact laws which shall collect and codify the customary laws of the Moros

• General Wood concluded that “the Moros and other savage peoples have no laws - simply a few customs, which are not worthy of codification”

• This would have authorized the government to ignore customary laws which pertained to land rights and inheritance

• The Legislative Council adopted Wood’s recommendations • Tribal Ward Courts were established which were equivalent to Justice of Peace Courts created in Hispanized provinces

• They possessed jurisdiction over all criminal and civil actions in which only indigenes were i nvolved • The only recourse for someone convicted in Ward Court was to appeal to the governor of Moro Province, who had the power to pardon or modi fy/reverse any sentence

• Considerable success was apparently achieved in establishing local governments among the Moros, but the cost was high

Worcester: White Apo

• He wanted to possess the same powers in Islamized areas that he exercised in other non-Christian territories • When he realized that this wasn’t possible, he expanded his turf by establishing a special province in Bukidnon • He also had an interest in the province of Benguet because of its mineral deposits and great wealth • His trips became annual events when the SPGA obliged Worcester to visit and inspect each Sp ecial Province • The inspections enabled Worcester to escape the hostile atmosphere in Manila • His absence subjected him to harsh criticisms, but he was indifferent Legal History A.Y. 2017-2018 | Ma’am Dy


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• Large feasts and numerous people were expected to greet him in all his visits • It enabled him to investigate conditions on the ground and accomplish 3 things: • Installed his official subordinates • Confirmed reports of abuses being inflicted by lowlanders • Grasped the enourmous economic potential of the plateau and began designing money-making schemes

• Disputes which could not be resolved on the local level could be passed on to local Justices of the Peace or the Court of First Instance

• The most common cases involved disputes between Ifugaos over land rights • The apos set themselves up as buffers between Ifugaos and outsiders • The concept of buffers was important to Worcester since it provided for primary public rationale for the distinct system of laws and local governments which were established in un-Hispanized areas

• Worcester wanted to distance un-Hispanicized people from their Christian counterparts to avoid formal education and to strengthen the prejudice of lowland elites towards them

• Worcester’s obssession reified the legal disenfranchisement of his self-appointed constituents and prompted policymakers to overlook similar problems among Hispanicized masses

• This was particularly true of undocumented ancestral-domain rights LYNCH: CHAPTER 17 A Hidden Agenda Allocation Shortcomings and Responses

• Colonial laws were not benefiting the overwhelming majority of the Philippines, and rights and interests of rural people were overlooked

• Despite this, the regime refrained from making any substantive changes, even after the SC promulgated the decision in Cariño v Insular Government

• Regime averted implementing the decision of Cariño and successfully preempted any further policy review of ancestral-domain rights issues

• US officials waged a successful and stealthy propaganda in favor of the status quo by blaming the Philippine masses for the official allocation shortcomings and apparently never considered that the problems might be wi th the processes

• Worcester said it was due to indifference of the Filipino as to whether he has title to the land he his holding • “Absolute ignorance of the law was the commonest of all causes for the failure of the poor to take advantage of the Public Land Act”

• He also blamed the opposition to the acquisition by the richer and more intelligent Filipino • They completely ignored the status of indigenous occupants and people qualified for free patents • In Taft’s address, he acknowledged that the homestead program was not working well, and implied that the problem was simply one of expense

Hidden Agenda Legal History A.Y. 2017-2018 | Ma’am Dy


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• The laws were actually working according to plan, albeit an unofficial and secret one • Taft and his commissioners could not openly admit that the allocation-machinery was not meant to function as publicly stated

• They believed that in order to lure capital into the colony, they had to have total control over the allocation of legal rights to natural resources

• When the Spooner Amendment was passed, the Commission wanted authority to allocate legal rights over “public” land resources be increased to 25,000 acres or that the commission be given power to lease up to 30,000 acres

• If their plan was ever to bear fruit, it was important to keep public domain from becoming officially cluttered with property rights, especially undocumented property rights held by poorly regarded tribal and peasant cultivators

• The key elements of their hidden agenda were to keep the estimates of “public” land occupants low and ensure that the processses for recognizing and allocating legal rights to land r esources were inefficient and cumbersome

• Section VI of PLA went further by providing a legal mechanism for rolling back recognition for lack of requirements

• Tax payments were not contingent on payers being in possession of documented title • Many of the taxes were paid in an effort to usurp the prior rights of acutal occupants including indigenes and other occupants who may have already developed the land

• Municipal elites enjoyed a great deal of local autonomy when it came to natural resources • It should have been no surprise that landed elites continually battled for delays in the payment of any significant increase in land taxxes

• In pursuit of the hidden agenda, the commission passed two important laws: • Act No. 618 - authorized the civil governor to establish civil reservations within the public domain. Land covered by civil reservation was neither to b e sold nor settled until the reservation was dissolved

• Act No. 718 - It provided that all conveyances by Moro sultans were to be considered illegal, void, in complete disregard of the Cariño precedent.

• The regime was attempting to anticipate and remove legal pretexts which might complicate future grants or leases of so-called public land to US cor porate investors, particularly to Sugar Trust

• Since the commission could not claim that US did not recognize aboriginal titles, it opted to overlook indigenous occupants by grossly underestimating their numbers

• It also denied the legal efficacy of conveyances by un-Hispanicized people, and excluded the Moro provinces from the Public Land Act, as a result, people in the colony could not have secured property rights even if they believed it to be important

Forbes’ Insight and Initiative

• • • •

Commissioner Forbes shared the eagerness of Taft and Worcester to draw US capital into the colony His achievements were in the field of land transportation He was not appraised of the hidden agenda, and claimed to still be giving attention to the matter of titles He sent a letter saying that the obstructionism went so far as to involve an objection on the part of the Atty-Gen to municipalities getting lands upon which schools were to be constructed

• During his inaugural address, he announced that the government would adopt the policy of not entering objections to issue of titles to lands Legal History A.Y. 2017-2018 | Ma’am Dy


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• Forbes finally passed the Cadastral Act which established a process whereby the government, on its own initiative, could survey and document all property rights within a specified area

US Congressional Investigation of 1911

• Worcester became bolder as he probed the limits of the Organic Act restrictions on large, corporate land holdings • In 1909, Worcester began negotiations with a representative of the Sugar Trust for sale of large land which was a former friar estate

• This provided much-desired opportunity to open the colony to large-scale, capital-intensive development • The sale was finalized, and was met with protests from the US and the Philippines • The Democrats regained control of the US House of Representatives after the 1910 elections, and investigations were made

• Worcester said that the Filipino is strongly attached to his own home, and is indisposed to mi x in affairs which he does not understand

• Not once during the inquiry was any mention made of the legal disenfranchisement or failure to enforce Cariño • Worcester then complained about the restrictions on cor porate holdings in the Organic Act • In the end, majority of the House absolved Worcester and insular government Worcester and the Public Land Act Reappraised

• Worcester justified his retention to Taft through the non-Christian tribes • The fact remains that peoples legally labeled as non-Christian were uniquely disenfranchised • The absence of a policy recognizing ancestral-domain rights underscores the paradox between Worcester’s public rhetoric about non-Christian tribes and the double disenfranchisement he quietly promoted

• The legally and cumbersome procedures established by Worcester favored the Hispanicized peoples and few privileged elites

• He never foresaw the problems of ancestral-domain usurpation and local-level resource monopolization which would become ever more serious in the ensuing decades

• After resigning, Worcester became vice-president and general manager of the American-Philippine Co. Hidden Agenda in Retrospect

• The absence of any evidence makes it more difficult to expose the underside of the legal machinery for recognizing and granting rights to Philippi ne natural resources

• Philippine land laws that orginiated during Taft era remain intact today such as the Public Land Act • The reasons for this agenda were because the Sugar Trust hoped to establish large plantations in the colony • The hidden nature of the agenda was not only of the regime’s wrongdoing, it also was becaues no influential Filipino or North American lawyer or policy maker called attention to the inequalities built into the colonial processes

VIII. The Advent of the Welfare State and Administrative Law AGABIN: CHAPTER 8



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Introduction

• Political economists made mistake: • Assuming that the individuals could or would be reduced to the class of a mere market commodity • Ideology of laissez faire seen as mechanism to transfer political power of the people to influential corporate and industrial magnates

• Roosevelt implemented New Deal: “to save capitalism from itself ” • He wanted to create admin agencies that could solve problems of their areas of specialization • They exercised rule-making and adjudicative functions • Admin agencies were created to address slow admin of justice in the regular judiciary • Colonial authorities had to create admin agencies to carry out policy of paternalism • Conservative sectors of US superimposed judicial review on process of admin agencies to check abuse of discretion and excess of jurisd

Emergence of Admin Due Process

• Judicial review led to conflict with admin agencies since admin agency processes were specific while courts approached through broad and generalized approach

• Conservative lawyers of US became concerned with admin processes and shifted the US SC trend from substantive to procedural due process

• Procedural due processs: seen as way of keeping gov regulation within reasonable bounds and limits of fair profits • “Administrative Absolutism”: campaign to sur round the regulatory process with procedures/rules to protect private parties from unfair/arbitrary action of ind. commissions

• Cooley was against regulatory legislation (focused on the unusual growth of admin discretion) but was appointed to Interstate Commerce Commission

• He established pattern of operations similar to court of law: case by case consideration of all regulatory matters • Regarded as more of a tribunal for adjudication of disputes bet. private parties and gov instead of an aggressive promoter of public interest in railroad transpo

• There was shift in judicial thought to curtail exercise of police power through admin regulation • Morgan cases: came up during New Deal era. These cases raised issue of validity of proceedings before Dept of Agri for rates in Kansas City Market, gave SC opp. to lecture admin agencies on fair admin proceeding

• Case marked struggle to protect rights of private parties against arbitrary and unfair procedures • Philippines SC also said: due process must be respected in admin proceedings • Court enumerated cardinal primary rights of parties before admin tribunals: right to hearing, adduce evidence, to decision supported by substantial evidence, evidence b e presented in hearing, tribunal must act on own in dependent judgement and not simple accept views of a subordinate, parties must know issues and reasons for decision

• But rights only applicable to quasi-judi cial tribunals exercising adjudicative functions • There was difficulty in trying to draw the outlines of due process applied to admin regulatory proceedings Redefining “Property” in the Welfare State

• Idea of “social justice” began to take shape during New Deal era: because of dissatisfaction resulting from economic and social distress



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• Needed new definition of “property” under the welfare state: said right of labor is deemed to be property within the meaning of consti guarantees

• Infused substantive aspect of “liberty” and said under laissez faire, “liberty” means much more than freedom from physical restraint

• Lawyers pushed for stricter judicial review of agency actions and due process The rise of procedural due process in administrative law

• Used techniques to expand scope of procedural due process • Techniques: • Right-or-privilege dichotomy: Courts directed their question on W/ N interest affected by admin action was a right or privilege. There must be personal or prop rights affected by adverse admin action. If privilege, due process cannot be accorded. It didn’t really answer the question as to whether a particular license, contract, or privilege should be taken away without hearing.

• Under this, gov can withdraw the privilege from an indiv without affording due process protection • If gov can withdraw the privilege, it can also impose any condition upon its exercise • US SC rejected right-privilege in Goldberg v. Kelly. It shifted inquiry on inj ury of interest of individuals affected. Procedural safeguards have to be observed before deprivatory action can be validated

• US SC said that test for application of due process requirement is not really the weight but the nature of the interests involved

• Court said that, determinations of due process requires: private interest be affected, indicated factors it considered essential in the balancing process, gov’s interest including function involved and fiscal admin burdens

• Court concluded that due process requirements do not warrant trial-type hearing before termination of disability benefits

Economic, social and cultural rights in a third-world setting

• Economic, social and cultural rights can be enforced only through immediate state action or only after economic and social programs had been carried out by gov bodies or agencies

• Decisions used to be in favor of rich, but president said that the SC was protecting the rights of the rich and released tirades on bench and bar

• Pres. Quezon himself pointed out the way for judicial statesmanship if the principle of social justice is to be given substance

• But shift in judicial thought on prop rights was imperctible The new property and agrarian reform

• Welfare state resounded more urgently in the Phil. as Central Luzon seethed with agrarian unrest • CIR: court confused the characterization of proceedings, maybe never occured to court that CIR was an admin agency

• At time of predominance of political power in the country, privileged thwarted the peasants’ economic power • Because of this, CIR was given absolute power to decide on all matters affecting labor and agrarian disputes • CIR fixed minimum wages for laborers and maximum rentals for tenants, it even defined the broad concept of social justice under the consti Legal History A.Y. 2017-2018 | Ma’am Dy


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• In affirming jurisd of CIR, SC knocked out traditional civil law props used by landlords in regular courts • • • •

Congress passed a law which provided for sale/alienation of land does not extinguish tenancy of relationship SC said it was valid in the light of Consti provisions in social justice and power of state to regulate tenancy contracts Marcos era rationalized as a means to reform the old oligarchic social order and to create a new society New Consti in Marcos time failed to redistribute lands to farmers because it was conditioned on just compensation

NOTES FROM CLASS

• During great depression, admini strative agencies came to be. Why? • Intended to address problems such as employee claims, and since courts were taking too long to decide, the administrative agencies were there to lessen the time it took to decide cases

• Why did administrative agencies due process emerge? • Because of grave abuse of discretion done by these agencies • What does administrative due process mean? • Right to be heard, and tribunal must consider evidence • How did it evolve? • Adjudicative: rights pertained only to trial-type hearings • Regulatory: regulating the business of agencies to protect the people • Since administrative agencies are conducting quasi-judicial proceedings, it follows that they should recognize the rights of the people

• What about regulatory functions? What is due process? • It is within their power to grant licenses and issuances to businesses • Regulatory functions evolved, because it became a regulation also to provide for economic well-being NOTES FROM CLASS

• What is right-or-privilege dichotomy? • If interest was found to be a privilege, he would not be accorded due process • What is evolution of process of administrative processes in regulatory proceedings? • Shift the inquiry to severity of injury of individual affected instead of weight • Restated that test for application is not really weight but the nature of interests involved • Property interest, whether it is entitled to consti protection or not • Regardless of regulatory/adjudicatory function, law wants to make sure that person is not deprived of due process, cardinal rights have to be followed

• What does welfare state entail? • State plays an important role in protecting rights of the people • State should actively promote the rights of the people • Since Philippines is a developing country, we don’t have enough resources to do all the programs that people need



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FERNANDEZ: Sixty Years of Philippine Law

Introduction

• Prescriptions in our codes and statutes are not to be distinguished from ordinances of the holy books or tribal feeling, or from the exhortations of priests or moral philosophers

• Their subject matter is human conduct and their concern is its control through the technique of dogma • Difference between law and custom/morals: • Ancient law: compounded of tribal customs and sacred commandments, proceeded from a lawgiver who was the conserver of ancient traditions and spokesman of the gods

• Peculiar conditions of modern world which gave birth to law as we know it today • One was: Secularization of life • Regarded economics and politics as departments independent of religion and governed by a system of laws peculiar to them

• State was conceived as instution apart from Christian churches, with no vital connection • Law was divorced from its ecclesiastical moorings, and made secular • Attributed as the will of the State. • Acknowledgement of a sovereign society was convenient, if not necessary • Concentration of power transformed custom and tradition into law • Statutes were promulgated to fill-in the gaps as well as moderni ze existing rules • Today, the propensity to legislate is still with us • As soon as activity assumed social importance, body of custom developed is embodied in a statute • In this way, through legislative fiat, the field of law has expanded to embrace known social relations Structure and sources of Philippine Law

• Begins with allocation of power through a constitution • People are ultimate source of power behind the law • Some of this is reserved to the people for their exercise, the rest, is bestowed in the government to be exercised in the interest and with the consent of the many who are ruled

• Powers retained by the people are in Bill of Rights • Supposed to achieve fair trial • Government also formed into 3 branches to safeguard against abuse • Legislature: power to make or lay down the law • Execute: enforces it • Courts: interprets it • Under this arrangement, the legal system would begin with rules in our constitution and in treaties • This puts us under civil law tradition • Consistently with civil law approach, the courts are still thought to do no more than ascertain the intent of the legislature as to what is the law

• As for other rules, we continue to pu t them in a lower category



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• Examples: executive orders, proclamations of the President, ordinances of municipal or quasi-municipal corporations, etc.

• Although these rules are not strictly law, they have the force and effect of law • Distinction of hierarchy of rules is important if law is to be a system at all • Must have rules that can control all others • We must also decide which class or rules must yield to another in the event of an irreconcilable conflict • Process of testing the validity of legal rules is an incident to the administration of justice by the courts • Refines the existing body of laws • Many changes have occurred in our existing bodies of law, but they have not touched the heart of the legal system • Living ordinances in our Consti have had uninterrupted validity since our earliest organic law • Examples: Equal protection clause, due process, separation of powers • Their continuance is because they constitute first principles in our theory of society • They lay down basic patterns for regulating social relations and individual conduct congenial with our political philosophy

• Function is to provide a framework of fundamental power relations, in which our cherished social purposes may best be realized

• The law changes and continues to grow • The stimulus to legal growth is to be found in the social process • Every step of an advancing culture and progress makes life more complicated, hence, it disturbs the customs we have grown accustomed to

• As soon as a new invention has made its dangers evident, popular feelings make its way into legislation to correct or minimize the harms

• Legislation only begins where some evil or inconvenience has been felt and is again likely to be experienced • Changing social circumstances generate changes in law as are thought required to meet the evil or deal with the inconvenience

• As such, we cannot expect all our ru les in law to have sprung into being at a common point in time • The development of law in a piece-meal basis also explains its diversity • We began with a nucleus of Spanish law and expanded it into a system with a steady accretion of American rules

• The greater bulk is from American jurisdiction • American influence is strong enough to have penetrated the civil law in this country • As for judicial techniques: • We exhibit the same patterns as the Ame ricans, and much of our Rules of Court were taken from federal rules on procedure, practice, pleading and evidence

• The official theory is that American d ecisions, are not binding on ou r courts, but judges behave as though they were • We accept the rule that the adoption of a foreign statute into the body of local law affects the adoption of the interpretation given the statute in the foreign j urisidiction

• Civil law is an exceptional area • For the rules dealing with the family, property etc, is due to Spain’s Civil Code • Though American influence in estoppel, trust, etc. still part



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The Theory of Philippine Law • Despite divergence as to antiquity as well as antecedents, it is not lacking in coherence • They are unified under our legal system • Law is the most intensely practical and pervasive • The substance which shapes it is instangible: It is theory, in particular, some theory of society or that prevailing general outlook on life frequently given the formal name of social philosophy • Law is inseparably linked with social theory because it is essentially an instrument for getting what men want out of their common life • Each body of law tends to reflect the dominant philosophy in society • It may serve perversions as well as noble pur poses • The law is useful, but usefu l to what ends? • If we are to judge rightly our own civil law, we must ask whether it is an instrument of human and civilized ends • The test is philosophy, it is known by the social purposes it serves • While we owe some gratitude to the Americans for having made the democratic philosophy fully effective, our supposed ignorance of this philosophy till their advent is not in keeping with historical facts • Democratic philosophy exerted its influence not only through American administration i the islands but also through native leadership • From the vision of an individual’s intrinsic worth, democratic philosophy derives the doctrine of natural rights and the origin as well as the function of society • Doctrine of natural rights: premised on qualities of man and that he has uncommon possibilities that should be regarded as precious • Man is imperfect, but by reason of his rational and moral qualities, he aspires for perfection • Progress of each individual depends on: • Life: mere physical existence. Indispensable because it is the beginning of what a man is, still has the opportunity to achieve • Liberty: we are each gifted with reason, imagination and will, all of which are unavailing unless we are free • Property: also a fundamental concern to everyone • While life liberty and property are concerns of the law, it is only liberty which can be rightly regarded as its creation, for life proceeds from God and property from nature • Despite these limitations, the function of the law is to enable the production of human beings who are able and free to lead fruitful and happy lives • His faculties should be afforded full development, and it is the business of law to assure that these things are given to them.

The Technique of Philippine Law • Our society is regarded as a political organism with its affairs in the hands of the government • In their work, they are assisted by a great number of people with varying degrees of authority • Generally, government authority cannot be used to oppress • Power of the government is not absolute, it is limited by fundamental liberties of the people in the bill of rights • Government authority can only be exercised according to the laws of the land. This prevents arbitrary or high-handed acts of public officials Legal History A.Y. 2017-2018 | Ma’am Dy


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• The highest officials are then filled by popular vote and are held only for definite terms • Incumbents are deterred from open abuse if they seek to retain their position through re-election • The danger of dimissal/removal diminishes the temptation to oppress • We must also reckon with the antagonism of our fellow-men • Ex. murderers, rapists, etc. • Their acts must be restrained and pu nished, which is addressed by criminal law • We are also protected from the other for less serious harms, if injury befalls as a result of some negligent act or omission of another • But if law confers security to life, liberty and property, it exacts in return the price of responsibility • We must stand ready to answer with our life, liberty or property • What Consti protects is not our deprivation of any of these things but our deprivation without due process • The law works out its purposes in the concrete by means of the right-duty scheme • Rules which confer upon us benefit or advantage are said to give us rights, on the other hand, rules which impose upon us some burden or detriment are said to give us duties • It is in connection with the judicial process that the right-duty mechanism becomes meaningful and significant • A significant change must be pointed out as to the method of imposing liability: • We are liable with our property usually because of some previous agreement • Only rarely are we answerable pecuniarily because we stand in a special relation to others • Recently, business relations have come to be regarded as conferring status, which justifies the i mposition of pecuniary liability on one party for the benefit of another by legislative fiat • The resulting burden thought reasonable • In these cases, status is the basis of liability, the law exacts a burden whenever the employment relation exists Progress and Development in Philippine Law

• The acquisitive spirit which has put our social process in productive ferment is likely to be the result of innumerable influences

• Much of the benefit derived from our law comes in the form of security • The whole array of legal rules tend to secure the individual from serious harms and substantial inconveniences • This feeling of security leaves us free to apply our energies to fruitful and immediate ends • Business has become and continues to be the dominant interest of our society • The goal of satisfying needs had to yield to the ends of business • Non-economic activity has come to be regarded as useful insofar as it serves economic purposes • Business is the most vested and influential interest in the political process of our day, and it follows that the rules by which our society is governed also adjusts to this end

• Most of the statutes promote business growth by stabilizing business relations and by securing to the businessmen their normal expectations in the course of trade

• Some programs have been saddled with abuses of administrators, but the resulting benefits cannot be wholly discounted

• Nationalism discarded the political habiliments which independence made academic and unnecessary, and has addressed its energies to the question of economic betterment of our people



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• By its explicit terms, aliens or entities controlled by them are barred from beneficial use of our natural resources as well as from operation of public utilities

• There is an assumption that the interests of the nation coincide the the interests of business • Springs from the faith at the core of our economic system that business is key to the advancement of our nation without sacrifice

• The average Filipino is still a poor parody of what he is envisioned to be • Still, we should not underestimate what our law has done by way of increasing opportunity for human achievement and happiness

• The movement has been slow but the resulting gain is real • The past 60 years has brought us progress and well may we say, indeed, that liberty as we know it i s the gift of our law

NOTES FROM CLASS

• What is the welfare state? • Law came about because circumstances needed it to do so in society • Whenever society is evolving, the rules and law will have to catch up, people should be secure and can go about their daily business without worrying about being victimized

• Opportunity means primarily the opportunity of people to engage in business • State needs to protect the individual from the awesome power of businesses • Real power can adversely affect the individual, that’s why the regulatory powers are there to promote the general welfare of the individual

IX. MARTIAL LAW AND ECONOMIC DEVELOPMENT

AGABIN: CHAPTER 9 Martial Law as an Instrument for Economic Development

• Marcos imitated the Roman empire by assuming all legislative power vested in the Congress • He moulded public and private law as the will of the commander-in-chief • Martial Law is defined by common law as the system of law, obtaining in times of rebellion, and growing out of the exigencies thereof, and which suspends all existing civil laws, as well as the civil authority and the ordinary administration of justice

• But martial law is not peculiar to common law, it dates back as far as Roman law • Marcos redefined it when he declared ML, because he also wanted to reform society with it • Being a lawyer, he covered all bases to assure that his declaration would not be struck out by Congress or SC • He issued a General Order divesting the judiciary of jurisdictino over cases involving legality of any decree made by him pursuant to ML

• Marcos organized citizens assemblies when petitions were filed to challenge the validity of the 1973 constitution • Marcos created his own constitution in much the same way that the old Roman emperors crafter theirs • Imposition of ML was the greatest apparent trauma in Filipino legal history • Foreign capitalists began to predict that the country would become the next economic miracle in Asia Legal History A.Y. 2017-2018 | Ma’am Dy


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• Marcos issued PDs that aimed to stimulate the economy • Chose intellectuals to rationalize his actions, and technorats from business sector who would implement economic policies for the newly-industrialized country

• The World Bank and International Monetary Fund also supported ML as they sought reforms that would open up the economy with less government interference

• The regime was called developmental authoritarianism • Before this, they were deeply involved in efforts to restructure the Philippine economy • The foreign donors were elated when Marcos appointed Filipino technocrats to his cabinet and other economic management positions

• Marcos obliged them by constantly telling the world that he declared ML to spur e conomic development • He promised complete access to country’s natural resources to foreign businessmen, unrestricted access to local credit resources, etc.

• Big obstacled to Marcos’ vision: nationalist constitution of 1935 which adopted the Regalian doctrine that all lands of the public domain belonged to the state, and emphasized the exploitation of natural resources was limited to Filipino citizens or those companies with 60% Filipino ownership

• The 1935 Constitution was amended in 1946 to accommodate Americans • The US offered finance aid to war-ravaged Philippines when it became independent in July 1946, in exchange for allowing American citizens to exploit the natural resources of the country

• The SC by 1973, had a line of precedents, already placed strict limitations on the right of foreigners to own or exploit natural resources

• Court held that foreigner could only own land through hereditary succession • SC held that even parity Amendement to the Constitution did not give Americans the capacity to acquire private agricultural land, after the ruling that the sale of agri land in violation of this prohibition is null and void

• For corporations, the court enforced restriction by holding that in determination of the ownership, the control test was the applicable standard.

• With the expiration of the parity amendment, the right of Americans to own land and other natural resources has also been terminated.

• These stood in the way of Marcos’ idea of economic development Constitutionalizing the Service Contract

• Went around the restrictions by appending the concept of the “service contract” as a qualifying provision to the Regalian doctrine in the Constitution

• He inserted a proviso that the legislature, in the national interest, may allow Filipino citizens to enter into service contracts for financial, technical, management or other assistance with foreign persons or entities for exploration, development, exploitation or utilization of any of the natural resources

• Marcos inserted the provision that constitutionalized the “service contract” • Another provision in the 1973 Consti gave him the power to review all contracts when national interest so requires • This lifted the floodgates to exploitation of natural resources of the country by his businessmen cronies and foreign corporations

• Marcos was fixated with the service contract as a tool for economic development, describing it as “innovative legislation” Legal History A.Y. 2017-2018 | Ma’am Dy


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• One of the first acts of Marcos after he assumed ML powers was to institute a regime of service contract in petroleum exploration

• The service contract in PD 87 incorporated most features of the old concession regime, including bidding off selected areas or leasing the choice to the i nterested party

• Another PD was promulgated legalizing the service contract in the mining industry • Marcos also issued a PD providing coal operating contracts without any limitations to citizenship • The service contract scheme was also adopted in commercial fishing in Philippine waters, geothermal energy, natural gas, etc.

• To attract foreign investors, the PDs were complemented by a h ost of other laws designed to safeguard the property rights of capitalists in the Philippines

• GOCCs were given not only corporate powers but regulatory powers as well. Effects of the New Legislation

• The efforts of Marcos government was a result of the government’s attempt to shift economic policy from import to export production

• A new investment pattern was so sought to create a new investment pattern on the development of import substitution industries that would integrate with processing of products which were previously exported in raw form

• Their efforts paid off initially The Fall of Unconstitutional Authoritarianism

• The achievements turned out to be short-term gains • The primary problem had been the legal culture of the Philippines • This was largely for the benefit of foreign interests which seemed happy to lavish support on a regime which employed its rhetoric

• They admit that their intent was political, and aimed at preservation, rather than transformation, not only of Marcos’ rule but also of the country’s socio-economic system

• There was not even-handed treatment of entrepreneurs, they all had to seek benefactions on a personal basis from the seat of power

• Since ML concentrated more power on the executive, the opportunities for corruption was greater • Personal loyalty and political connections undermined the objective of reforming society through ML • By 1980, the ML economic machine began to falter • He had turned his back on the principle of free and fair competition in favor of “crony capitalism” • He gave out licenses to his intimate friends and relatives, who set up big conglomerates to perform distribution functions

• This alienated foreign businessmen and other rivals, and they realized that Marcos’ policy was for public consumption

• The Americans threatened to cut off financial aid, and Marcos announced that he was lifting ML in 1981 for the elections, but he didn’t really do so and retained legislative powers

• Benigno Aquino was assassinated, and the train events started that led to the fall of his regime Birth of Environmental Law Legal History A.Y. 2017-2018 | Ma’am Dy


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• ML brought about the advent of environmental law in the Philippines • As exploitation of natural resources took off, this brought its own set of problems, the most serious being environmental pollution

• With industrialization came pollution • Marcos and his Cabinet knew the consequences, of oil spillages, improper disposal of waste, etc. • Thus pollution of waters was made a criminal offense, although it came with minimal penalties • The construction of works that produce dangerous or noxious substances, or performance of acts that result in introduction of sewage, industrial water, or any substance, was also made punishable.

Emergence of the Doctrine of Strict Liability

• Marcos attempted to make amends to the pollution, by imposing the regime of strict liability for operators of extractive industries who would violate their environmental responsibilities

• It was through his PDs that the Philippines adopted the polluter-pays principle, using not only the direct but also the indirect forms of safety regulation and pollution control, like imposition of civil/criminal liability

• The complementary provisions of the PDs adopting strict liability were legal innovations in the Philippines • These formed the foundations of the present environmental laws passed by Congress after ML was dismantled • This principle was borrowed from Roman law, which recognized liability based either on wrongful intent or negligence

• The concept of culpa aquiliana owes its origin to this Roman concept • The Philippines uses the term “quasi-delict” so that it would correspond to the Roman law classification of obligations and is in harmony with the nature of this kind of liability

• Thus, fault responsibility is the basis for breach of obligation of due diligence, which is an obligation of conduct • The innovation in Marcos PDs are understood to mean responsibility resulting from breach of an absolute prohibition of an activitiy, which constitutes an obligatio nof result

• Unlike fault responsibility, this type does not permit exoneration of the perpeatrator by virtue of a standard of conduct determined by due diligence

• While absolute responsibility knows practically no ground for exoneration, strict li ability allows exoneration for a limited number of reasons, including force majeure and wrongful conduct of the victim

• ML shifted the basis of liability to one based on legally-imposed obligation NOTES FROM CLASS

• How did ML affect the 1987 constitution? • Marcos expanded scope to not only stop the rebellion but wanted to establish new society • What did he mean when he wanted to change economic development? • Exploitation of natural resources • Constitutionalized service contracts which allows a Filipino to enter into a contract with a Filipino FERNANDEZ: JAVELLANA TO SANIDAD • The Philippines that we have today is a “constitutional authoritarianism” • One-man rule: both legislative and executive powers are lodged i n one person, Marcos Legal History A.Y. 2017-2018 | Ma’am Dy


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• There is no separation of powers but a union or concentration of powers • Second: no regular elections, none can take place independently of the will of Marcos • Hence, no change in administration except by his wi ll • Third: he is not removable by consti processes, except by his own acts • Indefinite tenure is a characteristic Stages: I.

Calling of the 1971 Constitutional Convention and proposal to change the structure of Government

• Indispensable because such change in structure made possible the Interim or Transitory Government, which is the basis of the present regime

• It enabled Marcos to surmount the constitutionally insuperable obstacles to his continuation in high office II. Affirmance by SC of President’s suspension of the privilege of the writ of habeas corpus

• In Lansang v Garcia the SC held that factual record was constitutionally sufficient to satisfy the constitutional conditions for such suspension

III. Declaration of ML which established and set in operation emergency or crisis government

• Ample justification for martial law, enabled the admini stration to neutralize the established opposition groups • Provided legal cover for this purpose IV. Approval of the 1973 Constitution, as announced by the President in Proclamation No. 1102

• Had Congress convened, it would have stood in the way of ratificatino of the Constitution, hence, imeediate approval of the 1973 constitution was imperative

• Congress had to disappear be fore it could convene • Partaking to the improvised and emergency nature, it explains the hurried manner of securing popular ratification of the 1973 Constitution

V. The SC ruling in the Javellana case

• It dismissed the petition questioning the ratitication of the 1973 Constitution and upheld the position of martial law government that the new constitution was validly ratified

VI. Suspension of the Interim National Assembly by virtue of Proclamation No. 1103

• Reportedly on the basis of popular objection to its convening • The Interim legislature never function because it was never convened VII. SC ruling in Aquino v Commission on Elections

• Said that the President is vested with legislative power, as long as the N ational Assembly was not convened • If the interim National Assembly is convened, and martial law is lifted, there would be a legislature, but this would run against popular objectino

• On the other hand, if not convened and ML is lifted, there would be no legislative power, hence, 1976 amendments were imperative to “normalization” (lifting of ML) Legal History A.Y. 2017-2018 | Ma’am Dy


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VIII. The ruling of the SC in Sanidad

• Sustained the validity of the steps taken by Marcos to amend the 1973 Constitution, in order to remove what he viewed as the constitutional impasse

• SC held that incumbent president was popularly intended as the surrogate to act in place of the Assembly in connection with the amending p rocess provided in the 1973 Consti

• Valid were his acts of: (1) adopting proposals for constitutional amendment (2) calling for a plebiscite (3) Submi tting proposals for ratification

IX. Reported overwhelming approval of the proposed amendments in the plebiscite which provides explicit constitutional basis to authoritarianism

Parliamentary Government, with interim provisions

• What reasons underlie crucial step of changing political structure? • First, presidential type of government was too frequently in conflict between two political departments • Second, many felt that Government should be immed iately be removable if it is unable to respond to public needs Suspension of the Writ of Habeas Corpus

• This was crucial to the transformation of the political system • Under the 1935 Consti, the very same constitutional conditions for a valid suspension of the writ applied to a valid declaration of martial law

• Once consti conditions were determined to exist, then there would be no constitutional barrier to a declaration of martial law, and this is what happened

• Following the suspension, a constitutional challenge was posed in Lansang v Garcia • SC made two key rulings: it had the power to pass upon the validity of the act, but in reviewing this act, their concern was to deter mine whether Marcos acted arbitrarily, or without reasonable basis

• The SC concluded that he did not act arbitrarily Declaration of Martial Law

• When ML was declared, there was no immediate public announcement • During the interval, military placed under custody thousands of citizens, and all mass media establishments were closed, and public utilities were under military control

• Since Congress had adjour ned until the following January, the executive branch was left in fu ll control of the government

• Immediately, the president unde rtook to align the entire Government machinery with the new order • He made the country a land reform area, he banned strikes and all for ms of mass actions • Within a week, the ConCon resumed sessions and speeded up its work, within 5 weeks after declaration of ML, drafts emerged

The 1973 Constitution

• It was patterned after the 1935 charter Legal History A.Y. 2017-2018 | Ma’am Dy


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• The political structure remained presidential in its main contours • The overall effect was to strengthen the executive • Under the Article on Interim Government, two political departments were established: • incumbent president (Marcos) • Interim National Assembly which drew membership from the current Congress and the ConCon • Important because under the Interim Article of the latter, he would not only continue as incumbent president, but his tenure would be indefinite

• Javellana case Ratification Cases

• In Planas v COMELEC , citizens challenged the validity of the submission of the constitution to a plebiscite under PD 73

• The suit was aimed at halting by injunction the scheduled plebiscite • SC dismissed on the grounds that it had become moot and academic • SC decided that there are not enough votes to declare that the new Constitution is not in force Suspension of the Interim National Assembly

• Marcos moved to reorganize the government to align it with the new constitution • Expanded the membership of the SC, designation additional membership and raising the salaries • Expanded membership of the COMELEC and constituted the COA, which replaced the Auditor General • He suspended under Proclamation No. 1103 the other political department, the Interim National Assembly • His ground was that in a referendum, they objected to a convening of this Incumbent President v Repository of Legislative Power

• Aquino v COMELEC: exercise of president of powers was upheld by saying that since National Assembly wasn’t convened, the president is deemed vested with it

1976 Amendments to the 1973 Constitution

• The announced posture of “self-reliance” cannot obscure the ugly reality of Philippine dependence on the good-will of the US in regard to military aid

• Since the NA could not be convened, the expected windfalls from the revised Military Bases Agreement were threatened with abortion since it need ed ratification by the Assembly

• Because of this, there was a need for a change in the 1973 Charter • Martial Law is to be lifted, but not until arrangements have been instituted that would permit the effects of martial law, without the association of the name

• The Batasang Bayan was speedily put together and convened, the barangays were consulted on the amendments they wanted, the proposals went through the Batasang Bayan and were approved and submitted by the President for approval in the plebiscite

Validity of the Submission and Plebiscite

• Sanidad v COMELEC: plebi scite was challenged on several grounds: Legal History A.Y. 2017-2018 | Ma’am Dy


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• Proposals for amendments could be adopted by the interim National Assembly or by ConCon called for the purpose

• No valid submission of amendments because there was no specification of the parts or provisions to be amended • Under martial law, no free and intelligent exercise of constituent power was possible • Adequate time for study and discussion of amendme nts was not provided • SC dismissed for lack of merit NOTES FROM CLASS

• What did Fernandez tell us about how Marcos consolidate powers for himself ? • He said that Marcos used one-man authoritarianism • Planning that Marcos undertook? • 1973 Consti • Wanted to bend maximum number of years that president can serve • What is the importance of Lansang v Garcia? • No barrier to declare ML SC upheald validity of suspension of writ • Committed flexible application of leaders • Marcos wanted to instil fear, rushed the draft of the constitution • He made his interim government an indefinite one

MENDOZA: The 1987 Constitution: A Marcos Legacy? Introduction

• The image of Marcos seems to have been in the mind of the members of the 1987 ConCom in drafting the 1987 Constitution.

• Provisions derived from 1935 and fundamental provisions in 1973 are perceived to have been instrumental in exercise of powers of Marcos

• Presidential powers have been emasculated, to a lesser degree, legislative power as well • Judiciary was vested with ultimate checking function • Scope has been broadened, overreaching its traditional role of arbiter President’s power as “Commander-in-Chief ” Emasculated

• Marcos issues Proclamation No. 1081 through the Commander-in-chief clause of the 1935 Constitution • Power of the President as Commander-in-Chief were principally the target of emasculation by the 1987 Consitution

• This was accomplished in Section 18, Art. VII • “Imminent danger” phrase was eliminated. As a consequence, President may only suspend in cases of invasion or rebellion, unlike in the previous constis where he may suspend HC or place Phil. under ML “in case of imminent danger” when public safety requires it

• Suspension can only be up to 60 days, while previously it had no limit • President required to submit report to Congress within 48 hrs from proclamation of ML/HC Legal History A.Y. 2017-2018 | Ma’am Dy


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• Not only Congress, but SC can also review the suspension • Consequences of ML are explicitly limited in 1987: • ML does not suspend operation of Consti nor supplant functiontioning of Civil courts or legsilative assemblies nor conferment of juris on military courts

• Suspension of privilege of writ of HC applies only to persons judicially charged for rebellion/ related

• Must be judicially charged within 3 days • These provisions are detached from reality, because when there is invasion or rebellion, we can hardly imagine a SC holding a trial to determine facts

• President will simply ignore explicit restraints provided for in Consti when he sees the need to proclaim • After issuance of Proclamation No. 1081, several persons were arrested and detained, petitions for HC were filed with SC, SC directed Sec of Defense Enrile to file returns

• Marcos then called a meeting to raise question of how government would respond to the petitions • Marcos then asked author whether validity of proclamation could be justified as constitutional • Author suggested the “political question” doctrine based on Lansang v Garcia, where the court limited judicial inquiry to deter mining whether in issuing the proclamation, the President acted “arbitrarily”

• On the proposal that the Gov simply declare that it had become a “Revolutionary Government” Marcos suggsted that if the Consti would no longer be in force, he felt that there were no limitations to the power of Government. That there would be no constratins to authority of military as administrators of martial law.

• Validity of PN 1081 was upheld in Aquino Jr. v Enrile • There was near concurrence of all the members of the SC to dismiss petition, but not a single opinion which expressed the decision of the Court. Only had 6 separate opinions

• After the issuance of PN 1081, arrest and detention of many opposition and media did not provoke or incite protest

• This was because Marcos, in seeking to address rebellion, took a very broad view as to what was necessary to quell the rebellion

• He wanted to establish a “New Society” utilizing powers under ML to bring about changes necessary to provide stability and prosperity to the country

• Marcos was obssessed with making sure that every act of his is in accordance with law • Utilizing his power to legislate, Amendment No. 6, by the issuance of PDs and LOIs. • But 1987 Consti provided in Sec 3, Art. XVIII that many of these issuance remain effective Judicial Power as a “Checking Function” in the 1987 Constitution Expanded

• 1987 Consti also expanded the scope of judicial power to assure that judicial intervention may be more easily triggered

• Judicial power: • 1987: “includes duty” of courts to settle actual controversies, “to determine w/n there was GAOD” • 1935: none like ^ • 1973: didn’t really constitute definition of “judicial power” only defined upon what body it shall be vested in Legal History A.Y. 2017-2018 | Ma’am Dy


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• Significant difference in 1987 Constitution is the GAOD clause because it is referred to as a duty which means an obligation to exercise it

• Commissioners said this was a product of their experience of political question doctrine during ML • Section 5, Art. VIII defines the power or jurisdiction of the SC • Power of SC is limited to cases or petitioners, without a case complying with all the requirements provided in Rules of Court, SC may not exercise “judicial power”

Limitation to the Exercise of Judicial Power Largely Mooted

• Judiciary is weakest because: • It is limited to those matters within the respective jurisdiction of courts as defined in the Consti and law • Cannot exercise judicial power on its own volition • But these boundaries are defined by the SC itself • The limits are self-defined • There is no obvious distinction between the “jurisdiction” of courts and “judicial power” • Judicial power: may be exercised in a “case” before a court over which court has jurisdction • But distinction has been casually disregarded • Standing is hardly given relevance in cases of GAOD • Court has given viability to the petition as a case sufficient to trigger the Court’s exercise of jurisdiction • Examples: Magallona v Er mita, SC gave standing to the professors and law students because locus standi as citizens with constitutionally sufficient interest

• Francisco v HR: SC gave viability to petition and recognized standing of petitioners filing as concerned citizens, taxpayers and legislators. But IBP wasn’t accorded standing because duty to preserve law too broad, however, reading of petitions show that it has advanced constitutional issues which deserve the attention of the Court

• Requirement of standing have been swept aside. What is only necessary is to have a well-crafted petition which advances constitutional issues which deserve attention of this Court in view of seriousness, novelty and weight as precedents

• In terms of martial law: sufficiency of factual basis • They haven’t gone so fare as to nullify issuances or actions of the President or administrative agencies, and if judicial power goes that far, it would make the SC a trial court by determining question of fact

• It is the author’s view that the Judiciary has become the Ombudsman of the entire government • Overseeing the exercise of the legislate and executive powers • They certainly are not the weakest The Strengthening or Weakening of the SC and the Judiciary

• Having conferred broader power, imposing a duty on the Judiciary, it would be expected that the 1987 Consti would strengthen the Judiciary to ensure a higher degress of independence from politics

• Under the 1935 Consti, members of the SC were appointed by the President with the consent of the CA • Under the 1973 Consti, they are appoi nted by the President • Under 1987: President shall appoint from a list of 3 nominees from the JBC



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• The apparent purpose in substituting participation of the CA is to purge the appointment process from political influence

• To determine whether it was effective: • 5 members are all appointed by the President for a term of 4 years with the consent of the CA, there is no prohibition against reappointment, and they get compensation equal to that of Court of Appeals

• As a result, Council, because of compensation, aspire to be reappointed by President. And President is most political person in the government.

• It has provided for greater influence of President in choice of judges. • But if the CA were still able to confirm, then the SC would not be beholden to the President entirely.

On the Organization of the SC

• • • • •

1935: 1 CJ, 10 AJ, may sit either en banc or in 2 divisions, unless provided by law 1973: 1 CJ, 14 AJ, may sit en banc, or, in its discretion, in divisions of three, 5, 7 members 1987: 1 CJ, 14 AJ, may sit en banc, or in its discretion, divisions of 3, 5, 7 members. Usual practice today is 5-5-5 This appears to have not been i nfluence during Marcos administration Appears to have been motivated by belief that the more the number, or the more the divisions, the more cases the SC can decide

The Ultimate Question What is the perceived function of the SC? Has it become more capable to ef fectively discharge its responsibilities?

• Based on author’s experience, function and responsibility is to be the ultimate refuge of any person whose rights, provided for in Bill of Rights, are violated by Government

• It resolves conflicts between departments of the Government • Primodial function: enforcement of the Bill of Rights • Since the SC has neither power of p urse nor power of the sword, it must draw its strengtth from the support of the people

• Support can only come from perception by people of its independence, impartiality, and expeditious performance of its functions

• Two principal factors: • SC must be independent and impartial, thus dispensing justice • It performs responsibilities or dispenses justice expeditiously • Broader power of “duty” of SC is intended to allow the SC to deal with what are regarded as “political” • But a troubling problem is that because of its greater responsibilities, it may not be able to resolve petitions with dispatch

• Resulting injury is most manifest in criminal cases, where accused is consequently imprisoned for years before case is decided

• Thus, the powers of the SC needs to be seen as a work in progress. Legal History A.Y. 2017-2018 | Ma’am Dy


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• During ML, Marcos issued orders and decrees, because of this, 1987 assured that laws may be more easily declared Unconsti by the SC.

• 1935, needed 8 votes to declare a law unconstitutional • 1973, needed 10 members • 1987, does not provide number of members for a quorum. A law may be declared unconsti under the 1987 Consti with only 5 votes, already constituting a majority of eight participating members

Reflections on Amendments to the Constitution A. Provisions on the National Economy and Partimony

• At present, there are initiatives in Congress to amend Art. XII of the Consti (National Economy and Patrimony) those which limit the ownership rights over land and other forms of activities over natural resources to citizens of the Phil. or to corporations or associations sixty percent of whose capital is owned by such citizens

• Provisions on the economy have hardly a place in the Constitution • We would deprive ourselves of the flexibility to adopt and adjust to changes in the world economy • Seems like a sign of distrust in the political departments, particularly the legislative department B. On the Judiciary, Particularly the Supreme Court

• Without SC or similar institution, the Bill of Rights would be no more than platitudes • The challenge and need then is to make the SC truly a formidable bulwark of the Bill of Rights • Its strength must be derived from the trust and faith of the people • The irony is that because its members are not “elected” with tenures immune to changes in the popular will, it is viewed as anti-majoritarian

• Author suggests that the SC sits en banc and that it be composed of lesser members, and with more limited jurisdiction

• Divisions diminish the value and force of a SC decision • Limited jurisdiction would hopefully enhance, assure that the deliberation required and intended by the Constitution takes place before a vote is taken and that the cases are decided expeditiously

• The expanded definition of judicial power suggests that the SC provides the ultimate remedy for any and all transgressions of the Consti and the laws

• This is irony. The SC cannot and is not constituted to provide the ultimate remedy for all transgressions of the Consti and violations of the law

• When it fails to provide ultimate remedy for transgressions of law, trust and confidence from which SC must draw its strength suffers

• Failure of SC to decide cases expeditiously is an obvious fact • Rules for deciding do not encourage belief that the required and necessary deliberation before a vote is taken is given to every case

• There is need that cases be deliberated upon by all of the members who participated in the resolution

• Cases are assigned to “Member-in-charge” in order to avoid a clear violation of the requirement that before case is assigned to a membe r, a vote shall first be taken and a decision reached in consultation.



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• Author cites the US SC procedure, (1) Choosing from among more than 7000 petitions for certiorari, (2) decidi ng 100 cases which were granted, (3) preparing written opinions

• What impresses author is that every case which SC decides to consider is heard on oral arguments • Oral arguments are important • Practice in Phil is different. Once petition is filed, it is raffled to a member as “Member-in-charge”. Usually this member also turns out to be the ponente.

C. On the Structure of Government

• Suggest making a shift from presidential to parliamentary • Under presidential system, there were several coup attempts • In our experience, what caught people’s attention were Senate hearings which endeavored to expose graft and corruption and irregularities in government

• In parliamentary, there are question hou rs, on which anyone of the national assembly can raise a question to the Government which is b ound to answer in a legislative session

• In parliamentary, coups are unlikely because the prime minister can be ousted by a vote of no confidence The Need for the Bar and the Academe to Play a Role

• In US, they are vigilant and active in commenting or criticizing decisions of the SC • In Phil, they have been relatively mute

X. A Constitution of Positive Liberty AGABIN: Chapter 10 NOTES FROM CLASS

• What is negative liberty compared to positive liberty? • Negative liberty: safeguard on the state, bill of rights • People realized that those who controlled allocation of natural resources were able to render useless the liberties • Liberty has 2 sides: • Negative duty of state • Positive duty of state - promote general welfare of the people to ensure that resources are shared equally • How were they able to pull-off judicial legislation? • SC used cases to promulgate these rules how cases will p roceed • SC’s rule-making power • Positive liberty was double-edged because it also restricted them from redefining the things in the consti • Why would welfare provision restrict the ability of the court to interpret the law? • When courts rule under Laissez-Faire doctrine, the decisions end up towards the detriment of people who are not well-based economically

• What is an example of how there will be conflict between the welfare state and Laissez Faire doctrine? Legal History A.Y. 2017-2018 | Ma’am Dy


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• Legislature comes up with law which promotes social benefit, but company can contest. If decision of corporation brings harm to people, SC will have to rule in favor of people.

• Why can government employees not go on strike?

XI. Judicial Review and Judicialization of Politics AGABIN: Chapter 11 Judicial Review and the Judicialization of Politics Introduction: Judicial Review as a “Brake on Democracy”

• For every action there is an eq ual and opposite reaction • The practice of judicial review has led to “judicialization of politics” becaues of the intrusion of the SC in the determination of public policy which has supposedly been entrusted to Congress, it was inevitable that the political departments would retaliate

• The political struggles involving the SC has evolved around the theme of majoritarian sovereignty represented by the political departments versus the judicial supremacy

• Judicial review owes its beginnings to John Marhsall. Adams nominated so many federal judges before leaving office. Among the appointees was Marhsall, as chief justice, and another justice of peace, Marbury. Marbury went to the SC on a writ of mandamus to deliver his commission. Marshall rules that mandamus was not the proper remedy, for it was unconstitutional under the Judiciary Act of 1789. This was because Congress adde d to the original jurisdiction of the SC, an action which the Consti does not sanction.

• Political considerations dictated the laying down of the precedent for judicial review, and up to now it is still dictated by political considerations

• Marshall’s basic distrust of democracy moved him to arrive at his conclusions Judicial Review in a Colonial Setting: Paramountcy of Police Power

• Taft launched a policy of attraction in the Philippines, attracting ilustrados by perpetuating the feu dal oligarcy or holding out promises of liberal tariffs

• But he stopped at the judiciary saying that the Filipino jurist had no adequate conception of what civil liberty is • He also complained of judicial corruption • He replaced Filipino judges with Americans and reorganized the SC by reducing its membership, and made Americans the majority

• The US SC and courts all decided in favor of the government SC invalidates Welfare Legislation

• The Filipino National Assembly started passing social welfare and economic legislation designed to meet the problems of a neo-colonial economy

• When the US SC attempts to thwart the political decisions of a democracy, it will be overridden sooner or later • This happened when the Philippine Congress increased the membership of the tribunal from 11 to 15 • They also passed another act which emasculated the high court by providing that 2/3 vote of the membership would be required to invalidate a law passed by Congress Legal History A.Y. 2017-2018 | Ma’am Dy


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Nationalism Trumps Judicial Review

• It was the provision in the 1935 Consti that required a two-third super-majority vote of the justices to invalidate a law that cause the SC to play a minor role in the politics of the country

• It was in 1972 that the court was put to the test, and it failed. • The Court held behind the political question doctrine and validate the obviously sham ratification of the Marcos-imposed 1973 Constitution

• The 1987 Consti restored the SC to a position of strength unknown during the history of the republic • The 2/3 vote requirement to declare a law unconsti was changed to majority votes, making it easier for the Court to invalidate statutes

• The definition of judicial power has been expanded as it constitutionalized the certiorari power, enabling the SC to check grave abuse of discretion

Across the River and Into the Trees: The Rise of Judicial Power

• The EDSA revolution led to the judicialization of politics, the institutionalization of judicial supremacy as a check on political power

• Certiorari was constitutionalized and expanded in scope, so that even if a law or an act of the president is not unconstitutional

• The SC was vested by the 1987 Constitution with the power to legislate, in the guise of rule making • The balance of political power was tilted in favor of the judiciary as against the political departments of the government

• The most significant innovation is the definition of judicial power, which expands the scope of judicial review and gives access to ordinary taxpayers to the Court to raise even political questions

• The broadened concept of judicial review under the present constitution is an innovation born out of the ML experience

• Judicial Power: • Duty of the courts of justice to settle actual controversies involving rights that are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction

Erosion of Technical Restraints on Judicial Review

• Under the 1935 Consti, there were built-in constraints as well as technical restraints to judicial review premised on separation of powers and on republic nature of our system of government

• There was also the doctrine of “primary jurisdiction” with regard to administrative agency action • All these judicial requirements had been eroded away through jurisprudence (Oposa v Factoran) • Ripeness and mootness are still contained in the definition of judicial power in the form of the case or controversy requirement, with ripeness as front-end counterpart of “mootness”

• Political question doctrine has been emasculated by the new definition of judicial power • The definition of “Grave abuse of discretion” is highly subjective, which give the judges sufficient leeway in deciding on way or the other

• Because of this, there is no bright line dividing certiorari from writ of error Legal History A.Y. 2017-2018 | Ma’am Dy


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Sowing the Wind: the Politization of the Judiciary

• When politics was judicialized, it is inevitable that the judiciary would be politicized • This seemed to be the theme during the impeachment case of Corona • In the case of In Re Appointments of Hon. Valenzuela and Hon. Vallarta, the SC ruled that this provisions bars the appointment of members of the judiciary within the prohibited two-month period before the presidential elections

• However, the SC revised its ru ling 2 years later by saying that midnight appointments were not illegal per se • In the Navarro case, the flip-flop was instigated by the intervention of non-parties who stood to benefit financially and politically from the re-opening of a final and executory judgement to the original case

• In League of Cities, despite the finality of the original judgement, the “aggrieved” parties persisted in seeking a reversal of the Court’s original decision

• The unprecedented disregard of the SC of basic rules of finality of judgement happened in just a span of 6 months, and marked the low point on the sociological legitimacy of SC decisions

Reaping the Whirlwind

• The impeachment was made to look like a confrontation between the representatives of the people versus a partisan SC.

• The decisions of the Court were dictated by personal considerations, not principled justification • The issue boiled down on whether Corona’s failure to include these two items i n his SALN constitutes culpable violation of the Consti, or betrayal of public trust.

• The senate resolved the debate and convicted him • The political posture of the Court in a number of cases decided during Corona’s watch was more partisan than ideological, more partial than principled and more personal than impartial

• The use of the powers of government against Corona was carried out to restore judicial independence, on the other hand, Corona fought back to preserve judicial independence

• President Aquino’s personal crusade against the old members of the SC illustrates the continuing struggle between the majoritarian forces and the supreme judiciary

NOTES FROM CLASS

• Beginnings of judicial review, birth of judicial review • Turning point: establishment of Philippine Congress, which passed law that supported economy • Because of ML, 1987 Consti gave SC additional powers: • Majority vote • Expanded judicial power • Rule-making power • What are the series of cases about? • Flip-flopping of SC, even though decisions were final they still reversed their decisions on mere personal letters • Because of expanded jurisdiction, now not immuned from politics. Judiciary became involved in politics.



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XII. Globalization and Development of the Law AGABIN: Chapter 12 Globalization: Back to the Future Globalization of the Law

• This pattern of imposing a common code of conduct by the dominant states on the subject states has been followed everywhere

• It follows this pattern because the viability of an international economic order presupposes the presence of a leader nation powerful enough to impose a common code of conduct upon other nations

• It is natural that globalization of the law in our day will reflect Pax Americana • The US is the sole model for shaping world capitalism and that globalization will lead to a new American hegemony

• Law becomes an instrument for pragmatic ends and not only for social or political control • This gives the law an economic slant for it is only the economic interest groups that have the resources and the organization to wage their claims and demand s on the legislature

• Instrumentalism becomes entrepreneurial when the law is used by opportunists to pursue economic objectives

• Our principal interests not revolves on the here and now rather than on the hereafter • Significant similarity between canon law and the ne w global order is that both transcend existing national sovereignties as well as supersede existing legal systems

• Globalization may expand law in much the same way as un iversal religion • Globalization’s interest is to establish a legal order that is free from local politics and populist and nationalist pressures

• The future is a world without borders, starting with trade and commerce Legal Ideology of Globalization

• Legal system that is most conducive to globalize an economy is one where the rule of law protects both political rights and free market economies

• What are the known principles of law? • Minimum government • Sanctity of private property • Liberty of contract • To the globalist, security means the assurances given by the law of property and the law contracts • Two basic cornerstones of capitalism: • Libery of contact • Protection of property rights • Common law is more flexible and expandable than the civil law, and can thus be made to accommodate surging economic forces clamoring for recognition

• The source of law shifts from political to economic power, from the people as sovereign to private individuals as economic units Legal History A.Y. 2017-2018 | Ma’am Dy


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• Referents of the legal system shifts from the political to the economic, from imperium to dominium The Courts as Referees Under Globalization

• What is the role of judges in the globalized market economy? • They are there to enforce the free choices, private contracts and reasonable expectations of the parties • The judge becomes the creator and manager of complex forms of relief which have widespread effects not only on the direct parties but even on persons who are not before the court

• Companies look up to the judiciary as one such agency of the state to act as a formal arbiter in the national arena

• The global institutions need an umpire (the state) which enforce the rules in each country equally and impartially • On a domestic level, they would rather leave such trivial arbitration to the municipal agencies of each state • There are four principal strands of economic and legal principles that tie the common code of conduct; • Free trade among nations • Deregulation and liberalization • Privatization and • Proctectionism • The rules of the game have been cast by developed countries for developing countries to follow • Privatization guarantees that the state and its government-owned enterprises will not • Globalization also involves protectionism for the strong, while they impose op en markets, they also protect their advantage in intellectual and industrial property

• The dominant players naturally seek to preserve their monopoly in science and technology through IP laws that criminalize unauthorized use of patents and trademarks

• The Judiciary is the one that has to enforce the terms of a treaty or multilateral arrangements made by the players

• These treaty terms may come in conflict with provisions of the constitution or with the domestic laws The Rebirth of Laissez Faire

• Dismantling of domestic regulatory laws directed at trade and commercial entities doing business within the state • In Yick v Hopkins, the US SC d eclared that the idea that a man may be compelled to hold his life, or his means of living at the expense of another is inconsistent with the due process clause of the Consti. This gave birth to substantive due process.

• The US SC also ruled that a railroad company is within the meaning of a “person” and must be accorded due process

• Liberty of contract doctrine: citizens’ liberty refers not only to freedom from restraint, but also right to pursue any livelihood, and to enter into all contracts which may be proper and necessary to his livelihood

Back to the Future?

• The economic arena is no longer the national but the world economy • The struggle for power had taken on new dimensions, as i t would see to it that economic p ower prevails over the sovereignty of the state



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• The campaign to limit the SC’s power of judicial review is part of the scheme for deregulation that forms the core of the globalization process

• Globalization contemplates a world ecnoomic system with minimal intervention from the state • Global players would like to delete the nationalist provisions and replace them wi th liberalization and deregulation

• Courts will have to restrain their predilection to intervene in economic decisions

Problems of Globalization

• Deficiencies of the global capitalist system: • Uneven distribution of benefits • Instability of the financial system • Incipient threat of global monopolies and oligopolies • Ambiguous role of the state • Question of values and social cohesion • The irony here is that, according to the UNDP report, while industrialized countries are the dominant consumers of world’s goods and services, it is the people in the poorest who pay proportionately higher prices for the resulting pollution and degradation of land, forests, rivers, and oceans that sustain the livelihood of the poor

• A multinational corporations ia national corporation with foreign subsidiaries which are clones of the parent company, but a transnational corporation is one globalized economic unit where parts, machines, planning, reserach etc, are conducted all over the world depending on the competitive advantages

• Their assts make them the major players in the global arena, 2/3 of international trade now involve transnational corporations and 1/3 involves trade within a single transnational corporation

Redefining the Role of Law in a Globalization Economy

• The problem that arises is the stark reality that the distribution of goods, opportunities and resources are always in favor of the dominant players

• Four factors why “haves” always come ahead: • Strategic position in the distribution process • Role of lawyers • Institutional facilities • Characteristics of the legal principles • In a globalized market system, there is n o “trickle-down process” that operates to distribute goods and resources • There is need to redefined the role of law in the present system, and to give meaning to the economic rights of the people

• Economic rights are the acknowledgement of the legitimacy of claims on income and participation in resources allocation

• Social welfare legislation: court recognized labor and unions as one of the effective means by which laborers may obtain protection of their rights

• Our present court has recognized the primacy of the right of future generations to a balanced ecology even against vested rights of businessmen Legal History A.Y. 2017-2018 | Ma’am Dy


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• In developed countries, there are hardly provisions for government override of competition-lessening schemes • The judiciary should meet these arguments in the same way they decided Lagman v Torres: free competition should be preserved whatever the economic costs in the short-term

• There is a need to upgrade existing judi cial machinery so as to tackle problems arising from use of IPs, a developing country is bound to lose more in protection of IP not only in rent but also in development, because the law acts as a deterrent to the transfer of knowledge and technology

• Globalization seeks to engulf all areas of our economic life. It does not involve only trade in goods and services, but also investment measures and free flow of capital. The function of law should focus primarily on the protection of the economic rights of the people, so that they will not be swallowed by the big winners of the global game.

NOTES FROM CLASS

• • • • •

The US companies wanted proliferate their products and services all over the world Free to enter contract if for livelihood Able to achieve what they want because economic power is power Judicial decisions meddled with economic policies What is the role of judges in this scenario?

• To balance economic power • Role of law is to be aware and uphold the positive liberties of p eople FERNANDEZ: Emergent World Federal System and its Implications for International Law

Thesis: international law has ceased to be law

• Two grounds: • Negative: social conditions that gave vitality and meaning and force to the classical theory have ceased to exist • Positive: It has given rise to an entirely new political system that is in the process of emerging, to which classical theory can in no way respond

• Community of independent and equal States has evolved into a world federal system • Jurisprudence of any beings with theory • The precise social conditions that gave birth to the d octrine may disappear, yet the doctrine remains • As the feudal order broke down in Europe, Nation States had arisen, accompanied by the developemtn of an industrial system and capitalist class that administered it

• Thus, Laissez Faire economics justified the pre-eminence of free trade in national policy • Under the Social Contract Theory, government was an instrument of its success • As soon as external trade b ecame profitable, it was imperative to subject their relationships within a d efinitive order • This order is provided by the classical theory of international law: several capitalist states were the subjects of this international order

• The regime that governed them was free and open competition for trade and profit Legal History A.Y. 2017-2018 | Ma’am Dy


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• Treaties are contracts between states • The theory of international law was posited to explain the new situation that had arisen in Europe • It described an order of rules regulating inter-relations of states • Each nation-state was permanent and inde structible • What guaranteed territorial integrity was the resources available to each nation for destruction of other nations • First fact: Virtual indestructibility of the nation-state through ware on physical hostilities • Since war was not in fact destructive of the international community nor of its component state, its occurrence was acceptable and accommodated within the theory

• The second fact that lent vitality to the theory is that within the community of states, there was continuing equilibrium in terms of national power

• Power means nothing more than the capacity for war • It is the equilibrium in the capacity for war that underlines the famous concept of balance-of-power • Significance of equilibrium is profound in the theory • As soon as one state was defeated, the community of states moved through diplomatic measures to ensure that the vanquished recovered its war potential as fast as possible, for fear of the victor becoming too strong

• The postulates of the theory rested on adequate empirical considerations obtaining at the time • Atomic weaponry falsified the primary factual support of classical theory, which is the capacity of the Nation-State to survive war

• The end of the invulnerability of the state to total destruction marked the end of the equilibrium of power that made the community of free and equal states possible

• In the theory of international law, states are deemed equal because none had the capacity for total destruction and each had capacity inflicting substantial harm. With nuclear monopoly, the social conditions underlying the theory disappeared entirely

• We now turn to the 2nd ground of the thesis, the positive side. They, the states, have been transforemd through increasing bonds of interdependence into units of a more inclusive political order. This new order may justifiably be described as the emergent world federal system, embracing most of the capitalist economies

• Within the capitalist world, there is no countervailing force that can successfully resist or counter the massive physical might of the Western military organization

• The supportive military complex provides two contributions to the maintenance of federal power: • They can be employed as auxiliaries to fede ral troops in preventing border encroachments by socialist forces • Second, contribution is system maintenance through inter nal stability within their respective countries • There are 3 methods for maintaining loyalty to federal interests on the part of the supportive military complex: • Federal indoctrination and training of the native officer corps: accomplished in training camps and centers • Second is military aid: excites gratitude and loyalty to the federal cause • Third is system of direct and indirect rewards for loyalty and support among the officers effected through the business and industrial establishments in each country

• Once overwhelming power is perceived, it is rarely necessary for the holder to actually exercise or to apply it • Federal economic organization: transcends the territorial units of the capitalist world • Two primary sectors: industrial and dependent • Industrial consists of industrial or developed areas



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LegHis Reviewer 2nd Half

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